Ryan v. Pennsylvania. R. , 132 Pa. 304 ( 1890 )

Per Curiam:

It is difficult to ascertain from the paper-books whether this was an appeal under the new law, or a writ of error under the old. This comes of the attempt to simplify legal proceedings by designating things of an opposite character by the same name.

The ease itself is without merit. The plaintiffs were driving nnder the defendant’s railroad, at Twenty-second street, when a train of cars overhead frightened their horse so that he became unmanageable ; they were thrown out of their carriage, one of them severely injured, and their child killed. For these injuries, suit was brought in the court below, and the jury, under a binding instruction from the learned judge, rendered a verdict for the defendant. This instruction is assigned for error.

The defendant company was operating its road in a lawful manner. No defect was shown in the construction of the road. On the contrary, it was the work of competent engineers, approved by the chief engineer and surveyor of the city, and in pursuance of an ordinance of councils expressly authorizing it. The sight and sound of a moving train always have a tendency to frighten horses. In this case, the fright was occasioned by the sound. We cannot measure, nor can a jury be properly allowed to measure, the amount of sound which may be made by a railroad train, either in crossing bridges at overhead crossings or at other places. The defendant company, under all the authorities, has the right to operate its road in a lawful manner; and when it does so without negligence, and1 without malice, it is not responsible for injuries occasioned thereby: Penna. ft. Co. v. Lippineott, 116 Pa. 472; Penna. R. Co. v. Marchant, 119 Pa. 541.

Judgment affirmed.