LIABILITY Foil FKIGHTENING ANIMALS. 601 



Where horses near a railway crossing are frightened by a 

 -whistle signalling to release brakes, the company is not liable 

 unless the engineer should have known that such signal 

 would, under the circumstances, probably frighten them.^** 

 So, the sounding of the whistle by the engineer when he first 

 sees a team on the track is proper, though the horses be 

 thereby frightened and contribute to the injury."'' Where 

 the plaintifif acts on the assurance of the engineer and 

 goes ahead, he may recover for injuries resulting from his 

 horse's fright, as the assurance implies control over the en- 

 gine.'*^ And the fact that a horse was frightened by an 

 ordinary movement of the train will not prevent recovery, if 

 the animal was ordinarily well broken, and was permitted by 

 the defendant's negligence to come so near as to be naturally 

 frightened by such ordinary movement. ^*^ Where a flagman 

 signals a carriage to advance he may, when he discovers a 

 train near the crossing, use any means in his power to stop 

 the horse in order to save life, even if the result of his action 

 is to frighten the horse and cause incidental injury. "An act 

 done upon a sudden emergency, when life is apparently in 

 peril, is not negligence, even though it is mistaken." ^^^ 

 Where a gate-tender at a railroad crossing let a woman pass 

 on foot under the partly raised gates, in front of which a 

 locomotive was standing, and afterwards raised them higher 

 so as to permit the passage of a restless horse which became 

 frightened and ran over the woman, it was held that, under 

 the circumstances, the gate-tender was not negligent, she 

 being guilty of contributory negligence in not. heeding the 

 -driver's warning.^^^ But where the engineer told the driver 



sary time: Lamb v. Old Colony R. Co., 140 Mass. 79; Leavitt v. Terre 

 Haute & I. R. Co., 5 Ind. App. Si3- 



"" Ochiltree v. Chic. & N. R. Co., 93 la. 628, 96 id. 246. 



"' Schaefert v. Chic, M. & St. P. R. Co., 62 la. 624. 



"■ Keech v. Rome, O. & W. R. Co., 13 N- Y. Suppt. i49- 



"' Carraher v. San Francisco Bridge Co., 100 Cal. 177- 



'" Floyd V. P. & R. R. Co., 162 Pa. St. 29. 



''" Scaggs V. Del. & H. Canal Co., 145 N. Y. 201, distinguishing Borst 



