ceased was so identified with the steamboat company as to make it solely liable, is not well taken. Even if the steamboat company had been guilty of negligence, of which there is no evidence, this would not relieve the defendant from responsibility. Cuddy v. Horn, 46 Mich. 596; [S. C. 10 N. W. Rep. 32].

The other objections raised during the trial we have examined, but discover no error in the rulings relating thereto.

It follows that the judgment must be affirmed with costs.
The other justices concurred.

See Bennett v. Louisville, etc., R. R. Co., 1 Am. and Eng. R. R. Cas. 71.

THOMAS MYERS and WIFE

v.

RICHMOND AND DANVILLE R. R. Co.

(Advance Case, North Carolina. October Term, 1882.)

Section hands engaged in repairing the track placed a hand-car upon a public crossing. The plaintiff, in attempting to pass the hand-car, collided her wagon with it, whereupon her horse became frightened and ran away. Held, That the defendant, by placing upon a public crossing an object liable to frighten horses, became liable for any injuries resulting from its act.

Scorr and Caldwell, for plaintiffs.

David Schenck, for defendant.

RUFFIN, J.-This action is brought to recover damages for personal injuries sustained by the feme plaintiff while travelling on a public highway, and alleged to have been caused by the defendant's negligence.

The complaint alleges that while going from her home in the country to the town of Thomasville, travelling in a buggy, the said feme plaintiff was found to cross the track of the defendant's railroad at a point near said town, upon a bridge which had been hitherto constructed by the defendant.

That upon said bridge, on the day in question, the defendant had negligently placed one of its hand, or dump-cars, partly obstructing the same, and so narrowing the passage across it, that whilst attempting, with the utmost care, to drive over it, the wheel of her buggy struck the dump-car and put the same in motion, whereby her horse became frightened and unmanageable, and ran away, throwing her from the buggy, and inflicting upon her serious and permanent injuries.

The answer of the defendant denies that the plaintiff was injured because of its negligence or that of its servants.

On the trial in the court below the following facts appeared: The highway travelled by the plaintiff crosses the track of the railroad used by the defendant, near Thomasville, at grade.

On each side of the track ditches had been cut something over two feet deep, which were spanned by bridges, each eight feet long and sixteen feet wide-the company owning one hundred feet on both sides of the track, which space was cleared, so that the bridges were plainly in view to persons approaching them. On the day of the accident the section master on the defendant's road, who had charge of the hands employed in and about the road-bed, took a dump-car from the company's shelter, which was located about two hundred yards east of the said crossing, and with his hands went to work upon the track, it being their invariable habit to have the dump-car to accompany the hands. Their work that morning was about seventy-five yards from the crossing, and at seven o'clock the section master, anticipating the passage of teams, and in order that they might pass safely, moved the dump-car up to the crossing, and there had it taken from the track and placed partly upon one of the bridges mentioned. The car measured six feet one way and six and a half the other, and, as loaded at the time, weighed some fifteen hundred pounds. Upon the car were some tools to be used by the hands, their coats and buckets containing their rations for the day, two kegs containing spikes, and two red flags some twelve by eighteen inches in size, and fastened to handles three feet long-the handles being set in the kegs so that only the red flannel could be seen above their tops. The flags were carried for the purpose of signalling trains, and it is the custom on all railroads to have such a car to accompany the section hands and to bear upon it the articles before enumerated. About eight o'clock the feme plaintiff, riding in a buggy drawn by a gentle horse, and which she had been accustomed to drive over the same route for two years, attempted to pass over the crossing, but in doing so the wheel of her carriage struck against the dump-car, at which her horse took fright and ran away, and threw her upon the ground, whereby she was seriously injured. It was also shown in evidence that during the day, and while the car occupied the same position upon the bridge, five wagons having wider treads than the plaintiff's buggy passed the bridge without coming in contact

with it.

At the close of the evidence the judge prepared the following issues, as those which should be submitted to the jury:

1. Was there space left upon the bridge sufficient for the plaintiff with ordinary care to have passed with her horse and buggy?

2. Were the injuries to the feme plaintiff caused by the negli gence of the defendant?

3. What damages did she sustain ?

After the argument of counsel had somewhat progressed his honor announced that upon reflection he had concluded to have the jury to ascertain the facts merely without their considering any mixed question of law and fact, and therefore he withdrew the issues previously prepared, and in lieu thereof submitted the following:

1. Did the injury occur at a public crossing of the defendant's

railroad?

2. Was the dump-car put upon the crossing by the defendant's servants?

3. Was there space left unoccupied by the dump-car sufficient for a person, exercising ordinary care, to drive a horse and buggy over the crossing without striking the same?

4. Did the plaintiff's buggy wheel strike the dump-car, and thereby the horse become frightened, and running away cause her to be injured?

5. In what sum was the plaintiff damaged?

The plaintiffs excepted to the change of the issues as made by the judge, and also to the sufficiency of the substituted issues; and they tendered other issues as being the proper ones, amongst which were the following:

1. Did the defendant carelessly and negligently cause and allow one of its dump-cars to be placed and remain on the bridge or crossing of its railroad?

2. Was the highway at said crossing obstructed by the dump-car so as to prevent the free passage of the plaintiff?

3. Was she injured by the negligence of the defendant?

4. Did she use ordinary care in driving over the bridge?

5. Did the plaintiff's horse become frightened, while crossing, at the dump-car, or anything thereon?

These issues were rejected by the court, and the plaintiffs excepted therefor.

In substance the verdict of the jury was that the injury to the plaintiff occurred at a public crossing of the defendant's road, upon which the dump-car had been placed by its servants; that there was space left upon the crossing, unoccupied by the car, sufficient for a person exercising ordinary care to drive a horse and buggy over, without coming in contact with the car, and that the injuries to the plaintiff resulted from the fact that the wheel of the buggy struck the car and caused her horse to take fright and run away. Thereupon judgment was rendered that the defendant go without day, and the plaintiffs appeal.

In the opinion of this court the plaintiffs have just cause to complain of the action in the court below, in respect to the issues submitted to the jury.

As framed and responded to, they present the plaintiffs' case solely with reference to the defendant's right to use the highway,

and make it to depend upon the single question whether the user amounted to a partial or complete obstruction of the passage across the bridge. His honor, in fact, throughout the entire trial seems to have considered the case only from this one point of view-as also did the defendant's counsel who argued the cause before us--thus excluding all inquiry as to the defendant's negligence in putting into the highway an object of a character likely to alarm the horses of those who might pass along it, which inquiry is certainly material to the plaintiffs' right of action, and we think fairly raised by the pleadings.

That one may be responsible for injuries resulting from negligently and unnecessarily putting into a highway objects likely to frighten horses of ordinary gentleness is shown by the authorities.

In Wharton's Law of Negligence, sec. 107, it is said, that inasmuch as it is neither unnatural nor unusual for horses, when travelling, to become frightened at extraordinary noises or sights, so therefore he who, upon a road thus travelled by horses, makes such noises, or exhibits such spectacles, is liable for any damage caused by their taking fright.

The same author, at section 836, notes the distinction between "necessary and unnecessary instruments of alarm," and says that the former such for instance as a steam-whistle on a locomotive or the like-being essential to important industries, are tacitly, if not expressly, licensed by the State, and the necessary use of them is not negligence, even though animals should be frightened thereby and injury ensue-though it is otherwise, he declares, when the use is not necessary to the industry.

In accordance with the principle thus laid down by the textwriter, the Supreme Court of Massachusetts, in Jones v. R. R. Co., 107 Mass. 261, held the defendant to be liable for injuries sustained by the owner of a horse that took fright at a derrick erected upon the company's lands, but near to a crossing, and which it occasionally used for loading and unloading freight by swinging an arm over the track-such an object, they declared, being calculated to terrify animals.

Of course the responsibility of the defendant in this action depends upon the question whether the use which it was making of the highway, at the time of the plaintiff's mishap, was a reasonable one or not, and this, in turn, depends upon the character of the object, the exigency of the occasion, the manner in which the road was frequented, and the hazard to travellers attending an obstruction at the particular locality.

These are all matters to be determined by a jury, under such instructions with regard to the law as may be given them by the court; but as to which it is not proper that this court should intimate an opinion at the present.

The issues submitted are not in themselves objectionable, but

they touch only one phase in the plaintiff's case, and it is due to them that the other should be passed upon also, and therefore there must be a venire de novo.

In order to support an indictment against a railroad corporation for negligently causing the death of a traveller at a railway crossing it must appear either that the corporation has been negligent or that its servants have been grossly negligent.

Where in such case the indictment simply makes an averment of negligence and on the trial no actual negligence on the part of the corporation defendant is proved and no gross negligence is shown on the part of said corporation's servants, the verdict should be for defendant.

The provisions of the Stats. of 1874, c. 372, § 164, rendering a railroad company liable to indictment where any person is injured in consequence of the failure of the company to ring a bell or sound a whistle on approaching a crossing, applies equally where the injury results in death and where it does

not.

Where there are two counts in an indictment and the evidence does not fully sustain one of them and yet the case is submitted to the jury and a general verdict rendered, this constitutes ground for reversal for non constat but that the jury convicted partly or wholly on the count not sustained by the evidence.

ALLEN, J.-The first question to be considered in this case is whether the third count is good in itself, or is supported by the evidence. The count in substance charges that at a certain place the railroad crossed a highway upon the same level; that one Sanborn was travelling on the highway and in the exercise of due diligence; that a locomotive engine attached to a freight train was passing the place of intersection; that a locomotive engine was coining in the opposite direction; that whilst the corporation was thus running the last-named locomotive engine it was the duty of the corporation, when approaching said place of intersection, in view of the position of said first-named locomotive and train of freight cars, to reduce its rate of speed and give proper signals and warnings; but that the corporation neglected to do so, and with said lastnamed engine ran over and killed said Sanborn. This count is founded on the St. of 1874, c. 372, § 163, which imposes a penalty upon the corporation if, by reason of its negligence or carelessness, or of the unfitness or gross negligence or carelessness of its servants