
    John I. Rector, Respondent, v. Syracuse Rapid Transit Railway Company, Appellant.
    
      Negligence —a horse frightened by the noise of steam escaping from a steam roller standing on the street.
    
    In an action to recover damages for personal injuries it appeared that the plaintiff was engaged in carting merchandise to a building in the city of Syracuse, and that before stopping at the building he saw in the street some two or three rods distant from the building a steam roller belonging to the defendant, which was perfectly motionless and noiseless and was not emitting any steam; that while he was afterwards engaged in unloading the merchandise the steam commenced to escape through the automatic safety valve of the roller, making a sharp, popping noise which frightened his horse, and that the plaintiff in attempting to catch the horse sustained the injuries for which he sought to recover. It further appeared that the roller was rightfully upon the highway. Held, that the' evidence failed to establish actionable negligence on the part of the defendant, and that- a- judgment entered .upon a verdict in fa.vor of the plaintiff should be reversed;
    That it was not incumbent upon the defendant to notify the plaintiff that steam was being generated in the engine and was likely to escape at any time with such a noise as would frighten horses, or to prevent- the escape of steam by banking the fire.
    Appeal by the defendant, the Syracuse Rapid Transit Railway Company, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the clerk of the county of Onondaga on the 14th day of February, 1901, upon the verdict of a jury for $850. ' ,
    This action was commenced on the 30th day of October, 1899, to recover damages alleged to have been sustained by . the plaintiff through the negligence of the defendant.
    
      Charles E. Spencer, for the appellant.
    
      George W. Driscoll, for the respondent.
   McLennan, J. :

The plaintiff was a cartman in the city of Syracuse, N, Y., and on the 3d day of August, 1899,'was engaged in carting hardware with a single horse to the Wesleyan Methodist Publishing Building, located on Onondaga street in said city; As the plaintiff turned from State street, which crosses Onondaga " street at substantially right angles, onto Onondaga street to go to his place of destination, he observed a steam roller standing upon the southerly side of Onondaga "street next to the curb, some two or three rods dis tant from the publishing building. The steam roller was standinstill; was attended by one man, and, so far as the plaintiff knew or observed, was not emitting any steam and was perfectly motionless and noiseless. ' He, however, knew of the roller’s, "location, and his attention was called to it.

Under those conditions- the plaintiff stopped his horse at the curb in front of the publishing building; left it unhitched and proceeded to unload the hardware from the cart into the building. While thus engaged steam commenced to escape from the steam roller, making a sharp, popping noise. The horse was frightened thereby and started to run; the plaintiff attempted to catch the horse, and in so doing received the injuries for which he seeks to recover in" this action.

The chief question urged by defendant’s" counsel upon this appeal is that the evidence, as matter of law, failed to establish actionable negligence on the part of the defendant. The' defendant had the right to have and use the steam roller upon the street in question, provided it was not guilty of negligence in such use. (Mullen v. Village of Glens Falls, 11 App. Div. 275.) The jury was expressly so charged by the learned trial judge in this casé.

.- The requirement of the statute (Laws of 1890) chap. 568, § 155) which makes it incumbent upon a person moving a steam engine upon a street or highway to send “ a person of mature age at least one-eighth of a mile in advance (of such engine),, who shall notify and warn persons traveling or using such highway or street with horses or other domestic animals of the approach of such carriage,’ vehicle or engine,” was complied with by the defendant, and the jury was so instructed. The plaintiff contends that in addition the defendant should have' notified the .plaintiff that steam.was up in ...the, engine, and that noise such as would frighten horses was liable to- be made at any time by reason of its escape. The evidence conclusively shows that the noise which frightened the plaintiff’s "horse was caused by the escape of steam through the automatic safety valve, and that such a valve was necessary to the safe operation "of. the engine. There is no evidence tending to show that the escape of steam was permitted or caused by any act of the defendant’s engineer, except as he permitted the automatic valve to work in the manner in which it was intended to work. The plaintiff knew or must be presumed to have known that the engine was supplied with a safety valve, and that when there was sufficient pressure steam would escape by such device. He had no right to assume, because the engine was motionless and noiseless during the two or three minutes in which he observed it before the accident, that it was a dead engine or not under steam. The location of the roller in a public street clearly indicated that it was not being stored at that place, but was there either for the purpose of use or to be transported to some other place. At all events, so far as appears and as was expressly charged by the learned trial court, the defendant’s roller was properly upon the highway in question, and the defendant had the right to operate it in the manner in which such machines are usually operated. One of the results incident to the operation of a steam engine of the character in question, as clearly appears by the evidence, is the occasional escape of steam through the safety valve. It is contended by plaintiff’s counsel that this could have been avoided by banking the fire or cooling it, thus reducing the pressure of steam to such an extent that it would not have escaped through the safety valve.

The defendant was not required, in order to absolve itself , from the charge of negligence, to thus operate the engine in question. Being lawfully entitled to move the steam roller upon the street in question, it had a right to do so in the ordinary way, provided only that it complied with the requirements of the statute referred to, and which were complied with in this case.

We think the case of Scaggs v. President, etc., D. & H. C. Co. (145 N. Y. 201) is decisive upon the question of defendant’s negligence in this case. That was an action brought to recover damages which resulted from the fright of a horse occasioned by the escape of steam from a locomotive of a steam railway, which stood near a highway crossing which the plaintiff was attempting to pass. The court said: The escape of steam was from an automatic safety valve which, when the engine is standing, prevents the dangerous accumulation of steam by letting it off when the pressure reaches a certain point. It cannot, of course, be pretended that the use of such a device,' adopted for protection from danger and which acts mechanically and not under the control of the engineer, is negligence.”

The foregoing considerations lead to the conclusion that the evidence, as matter of law, failed to establish actionable negligence on the part of the defendant, and that the judgment appealed from should be reversed.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.  