Cahoon v. Chicago & Northwestern Railway Co.

WiNslow, J.

The whistling of the engine was not negligence; on the contrary, it was required by the statute. R. S. sec. 1809. The village of Lyons being unincorporated, the whistle must be blown eighty rods before crossing each of the streets which cross the track. The place where the engine first began to whistle was at or very near the whistling post for Walnut street, and the place where the last whistle was sounded was at or very near the whistling post for Cedar street. The statute absolutely requiring whistling to be done at these points, negligence cannot be predicated thereon.

As to the alleged negligent and excessive escape of steam, the case is very similar to the case of Abbot v. Kalbus, 74 Wis. 504, and that case seems decisive of this upon this question. In this case there was no more proof of excessive noise in blowing off steam than in that case, and it was there held there was no proof of unusual escape of steam. The right to operate a railroad includes the right to make the usual noises incident to the movement of its engines and trains, and it is matter of common knowledge that the exhausting of steam from the cylinder cocks is one of the noises very frequently accompanying the movement of engines. Furthermore, there is no evidence from which the jury would be justified in findingthat it was done wantonly or recklessly.

It is claiméd that the engine could not lawfully stop and move eastward until it had reached a point at least eighty rods west of Pine street, because it must by law whistle eighty rods west of and before crossing Pine street. As aptly said by respondent’s counsel, the result of this construction would be that no engine could ever start at a point less than eighty rods from a highway crossing. We cannot indorse such a construction, certainly not in favor of one who is not using the highway crossing, but simpty traveling on a parallel highway. The nonsuit was right.

By the Court.— Judgment affirmed.