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Fares v. Railroad.

engine might start, so we concluded to drive rapidly to get out. The conclusion was that, as the engine was standing still, we would have time to get through. When the engine started, it didn't have to whistle to let us know it was starting, because we saw it start. They didn't ring the bell. They came rather quickly. When the engine started, the horses commenced to rear; that is, when the engine was away a few yards." The witness further testified: "When the engine started it did not make any other noise than an engine will going over the rails, but its movements scared the team as soon as it started."

Under this and other evidence of similar import, the jury returned a verdict in favor of the plaintiff for the sum of $5,150, and judgment was entered thereon accordingly. Thereupon the defendant prosecuted this appeal.

BARTCH, J. (after stating the facts).-When the plaintiff rested his case, the defendant interposed a motion for a nonsuit, upon the ground, among others, that the railroad company was not shown to have been guilty of any negligence whatever in operating its engine on the occasion in question. The motion was overruled. Then, when both sides rested, the defense requested the court to instruct the jury to return a verdict in favor of the defendant, which request was refused, and thereafter a motion for a new trial denied.

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The appellant under proper exceptions, complains, in the first instance, of these several rulings of the court, and insists that the evidence shows, without conflict, that the defendant was entitled to a verdict and judgment as matter of law. The contention is that the railroad company is not liable to the plaintiff for the injury sustained by him, under the circumstances connected with the accident and disclosed in evidence, and this contention appears to be well founded. The defendant had a right, under the law, to construct and operate its railroad through the canyon,

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Fares v. Railroad.

and in doing so it was compelled, owing to the physical conditions of the canyon, to run parallel with and in close proximity to the highway. To hold that the railroad company was guilty of negligence in constructing its railroad parallel with and adjoining the highway would practically be to hold that railroads could not be constructed and operated in canyons in this intermountain country, for ordinary observation demonstrates the utter impossibility of constructing railroads through these precipitous canyons without, in places, encroaching to some extent upon highways and rendering them less safe. This the respondent appears to admit, for while in the complaint, he alleged negligence in the construction and operation of the railroad so close to the highway that a team could not pass with safety, he offered no proof in support of such allegations; yet one who alleges negligence has the burden to prove it. He must show, as to an act lawful in itself, the commission of it, at the time, place, or in the manner, was unlawful. We must therefore assume that the railroad was lawfully constructed at the place in question, notwithstanding its close proximity to the highway and the cliff of rocks north thereof. It is apparent that railways and highways must, of necessity, in some places, run side by side. In such cases the inconvenience to passing teams occasioned by the construction and operation of the railroad is compensated for by the greater convenience to the general public in the more rapid and improved method of intercommunication and transportation. The railroad in the present instance having been lawfully constructed at the place where the accident occurred, the railroad company had a right to stop its engine at the water tank, and, after taking water, to again move it in pursuit of its business; and the moving of the engine, without making any unnecessary noise, or any more noise than an engine ordinarily makes in rolling over the rails, as is admitted in this case, was not an act of negligence, even though the appearance of the moving engine frightened the respondent's horses.

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Fares v. Railroad.

A railroad company has the undoubted right to run its engines and trains on its railroad adjoining the highway, and is not responsible to travelers whose horses become frightened by the appearance of such engines or trains, if the same are operated prudently, and without unnecessary noise or willful disregard of a traveler's perilous position, after it has been discovered by the servants of the company.

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Nor is a railroad company required to keep a lookout specially for travelers upon the highway, where the railroad and highway run parallel with and are in close proximity to each other. Under no circumstances is it required to exercise more than ordinary care towards persons traveling along a highway adjacent to the railroad. It is its duty, primarily, and in the highest degree, to keep a lookout upon its track to discover persons or vehicles that may be upon or crossing the track, so as to avoid collision with them. This duty is enjoined upon it not only to avoid injury to those who may be upon or crossing its track, but also for the safety of its passengers, whom it has contracted to carry safely. It is true that when those in charge once discover a traveler, on an adjacent highway, in a perilous position, they are bound to recognize his situation, and to refrain from doing any heedless or wanton act which will increase the danger of his surroundings, and, if they fail to do so, the company will be liable for resulting injury and damages; but no such liability attaches for the mere failure of servants, while in the exercise of proper care in running engines or trains, to observe a traveler upon an adjacent parallel highway, who may be in a perilous position because of the fright of his horses at the appearance of an engine or train. Nor is a railroad company, as alleged in the complaint, required to keep its engines and cars so under control that they can be stopped if any team is found at a point of danger on an adjoining highway; nor is it bound to exercise the same degree of care, as contended for by the respondent, at all points of known or reasonably

Fares v. Railroad.

apprehended danger, in keeping a lookout, and in the operation of its engines and trains alongside the highway, as it is required to exercise at grade crossings. Such rules would render the operation of railroads in this mountainous country, where such places of danger are almost innumerable, well-nigh impracticable, and would release travelers upon the highway from their duty of themselves keeping a lookout for their own safety.

In Lamb v. Old Colony Railroad, 140 Mass. 79, 2 N. E. 932, 54 Am. Rep. 449, a case in many respects like the one at bar, the plaintiff was driving his horse along a highway parallel to and adjoining the defendant's railroad, and the evidence was uncontradicted that the railroad and highway were adjoining each other for more than a mile. The plaintiff's horse was frightened by the smoke from the engine of a train passing on the railroad in the direction opposite to that in which plaintiff was going, and the plaintiff was injured in consequence. The smoke was occasioned by the act of firing up the engine on the stretch of railroad adjoining the highway. There was no evidence that the defendant's servants knew that the plaintiff was on the highway, but there was evidence that they would have seen him if they had been on the lookout for travelers on that part of the highway. The court, holding that it was not the duty of those on the engine to be on the lookout for travelers on the highway who might be endangered by such act, in the course of its opinion said: "The defendant had a right to run its trains on its railroad adjoining the highway, and was not responsible to travelers on the highway for the consequence of noise, vibration, or smoke caused by the prudent running of its trains. Under such circumstances, the firing up near the highway, and the smoke occasioned by it, were ordinary incidents of running the train, as much so as the smoke when not firing, or the noise or vibration caused by the cars; and they were not of themselves evidence of negligence. The lawfulness

Fares v. Railroad.

of the act cannot depend upon whether a traveler happens to be at such a distance from the engine that he will not be endangered by the smoke caused by it, or in such a position that he cannot be seen by the fireman or engineer. If it is their duty to see one traveler outside the location of the railroad, it is their duty to see how many travelers are there, and to observe the position, direction, and speed of each, the speed of the engine, the state of the atmosphere, the direction and force of the wind, the character of the coal used, and other circumstances which may determine whether all travelers are, and will continue to be until the smoke is dissipated, in such positions that their horses will not be affrighted by it. Being under no obligation to watch for travelers on the highway, the defendant could not have been guilty of negligence in not seeing and avoiding the plaintiff."

So, in Dewey v. Chicago, M. & St. P. R. Co., 99 Wis. 455, 75 N. W. 74, an engine of the defendant, in charge of its servants, passed over a street crossing, and, after going a short distance beyond it, was brought to a stop. The plaintiff was riding in a buggy drawn by a single horse, and, when he approached the crossing, the engine, in plain sight, started, and made a slight exhaust or puff, and steam and smoke escaped, but there was nothing unusual as to the noise, steam, or smoke. There was a strong wind blowing, which carried the steam and smoke directly towards the horse, whereby it became frightened and uncontrollable, overturned the buggy, and injured the plaintiff. At the close of the evidence a nonsuit was granted. In affirming the judgment of nonsuit, the appellate court said: "They had a right to move the engine in pursuit of defendant's business in which they were engaged, and without responsibility on defendant's part for the consequences of any of the ordinary noises which the operation of the engine caused, or such incidents as the ordinary escape of smoke and steam. If such were not the case, railway companies would be greatly embar

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