The preceding case is distinguished in Cincinnati, N. O. & T. P. R. Co. v. Marrs, 27 Ky. L. Rep. 388, 85 S. W. 188, wherein it is held that it is the duty of railroad employees, upon finding a drunken man lying asleep between tracks in the company's yard, either to lead him to a place of safety, or else be on the lookout for him in the operation of their trains. And if they simply arouse him, and start him walking in the direction of the road, and he is subsequently overcome, and is injured while asleep on the company's tracks, the railroad company is liable. No liability arises for injury to a man who went under a standing freight train, and fell asleep, in the absence of knowledge of his situation at the time the train was moved, although he was seen by the company's employees sitting under a car smoking, a half hour before the train started. Kendall V. Louisville & N. R. Co. 25 Ky. L. Rep. 793, 76 S. W. 376. In Denman v. St. Paul & D. R. Co. 26 Minn. 357, 4 N. W. 605, it is said that a railroad company owes a person asleep on its track no duty except that of exercising due diligence to avoid injuring him, after discovering his situation; and that, if he is not seen by those operating the train, no liability arises for running over him, although the track is level and straight where the man is lying, so that a man's hat can be seen for 400 or 500 yards distant. to the jury. Burnett v. Burlington & M. R. Co. 16 Neb. 332, 20 N. W. 280. Whether the failure of a yardmaster to go to the relief of a little girl, whose foot had become fastened between a rail and a guard rail, when he knew she was in danger from approaching cars; and whether a switchman whose duty it was to see that the track was clear, ought to have seen the child before giving the signal to back cars, and given alarm in time to avoid injury, or should have rescued her by his own efforts, are questions for the jury. Townley v. Chicago, M. & St. P. R. Co. 53 Wis. 626, 11 N. W. 55. Because of the danger from an approaching train, a little girl went upon a railroad crossing to compel some children younger than herself to leave the track, and in so doing got her foot caught between the planking and the rail. At the distance of 854 feet the engineer of the train saw the child on the track, and that she was waving her hands in alarm, and not stepping aside. It was held that the engineer should have stopped the train at once upon discovering plaintiff, and that his failure to make an effort to do so until it was too late to avoid striking her raised a question of negligence for the jury. Spooner v. Delaware, L. & W. R. Co. 115 N. Y. 22, 21 N. E. 696. It being the duty of a railroad company to use reasonable care and diligence to prevent accidents to persons crossing its tracks, it may become liable for injury to a person whose foot is caught in the track at a crossing, although his disability is not discovered. If a boy's foot was caught between a main rail and a guard rail, because of their worn condition, while he was crossing the track before slowly moving And O'Keefe v. Chicago, R. I. & P. R. Co. 32 Iowa, 467, holds that an instruction, re quested by defendant, that a railroad company is not liable for running over a man sleeping on the track, unless it had knowledge that he was thus lying in time to prevent the accident, should have been given without the qualifi-detached cars, and was run over, when the accation "or could have known with the exercise of ordinary caution." 2. Foot caught in railway track. Here, again, we find the same conflict of authority as to the duty owing persons thus helplessly situated, with the preponderance in favor of the rule that the duty of exercising care to avoid injury arises as soon as such person's danger is discovered. It is for the jury to say whether it was negligence not to stop a railroad train upon seeing a child upon the track, where, upon being ordered off the track by the employees, when the train was 163 feet distant, the child started to get off, and caught its foot between the rail and the planking at a private crossing; whereupon everything possible was done to avoid injuring it. Pennsylvania R. Co. v. Morgan, 82 Pa. 134. Even where a person puts himself in a posttion of peril by inserting his foot in the space between two rails for an experiment, and it becomes fastened there, the railroad company must use reasonable care not to run over him. McKinney v. Long Island R. Co. 2 Silv. Sup. Ct. 543, 6 N. Y. Supp. 168, Affirmed in 119 N. Y. 631, 23 N. E. 1144. Where a switch is moved by a brakeman so as to turn an engine onto a track where a boy has his foot caught between a rail and the guard rail, and the brakeman then attempts to extricate the foot before the approaching engine, but, failing in that, the engine runs over the foot and crushes it, the question of the railroad company's negligence should be left cident might have been prevented if the brakeman on the moving cars had been on the lookout, or if signals to stop the cars had been obeyed, the railroad company is liable on the ground of the defective condition of the track, and also for its failure to stop the cars after the boy's situation became known. Goodrich v. Burlington, C. R. & N. R. Co. 103 Iowa, 412, 72 N. W. 653; Hughes v. Chicago, St. P. M. & O. R. Co. 122 Wis. 258, 99 N. W. 897; Illinois C. R. Co. v. Crockett, 25 Ky. L. Rep. 1989, 79 S. W. 235. But a railroad company does not owe the duty of keeping a lookout, to a boy trespasser on the track, although he has his foot caught in a frog or a cattle guard; and, if he is not discovered in time to stop the train before striking him, it is not liable for his death or injury from being run over by a train or backing engine. Lake Shore & M. S. R. Co. v. Clark, 41 Ill. App. 343; Louisville & N. R. Co. v. Kellem, 14 Ky. L. Rep. 734, 21 S. W. 230; Sheehan v. St. Paul & D. R. Co. 22 C. C. A. 221, 46 U. S. App. 498, 76 Fed. 201. In Smalley v. Southern R. Co. 57 S. C. 243, 35 S. E. 489, it is held that the duty of exercising special care to avoid injury to a person found upon a railroad track, who from age or misfortune is apparently helpless, has no application to the case of a person whose foot is caught between the ties of a railroad trestle, but who to all appearances is simply squatting or sitting there, and is in the possession of all his faculties. As in other cases affecting trespassers, it is held by a few authorities that the only duty arising under such circumstances is to avoid | S. W. R. Co. v. Bolton (Tex. Civ. App.) 81 S. wilful injury. W. 123. The sole duty which a railroad company owes to a trespasser whose foot is caught in the track is not wantonly or with reckless carelessness to injure him after his situation is perceived. St. Louis, 1. M. & S. R. Co. v. Monday, 49 Ark. 257, 4 S. W. 782; Louisville, N. A. & C. R. Co. v. Phillips, 112 Ind. 59, 2 Am. St. Rep. 155, 13 N. E. 132. See further, as to liability of a railroad company for injuries to persons in such situation, note on Care required of railroad companies to prevent injuring small children upon the track, 25 L. R. A. 784. 3. Walking on railway trestle. Where those in charge of a railroad train discover a person on a trestle, from which he cannot step off to a place of safety, it is their duty to stop the train, if possible. Peirce v. Walters, 164 Ill. 560, 45 N. E. 1068, Affirming 63 Ill. App. 562; Cook v. Central R. & Bkg. Co. 67 Ala. 533. And even if such person might save himself by a perilous jump of 11 feet to the ground, it is the duty of the engineer, upon discovering his peril, to resolve all doubt in favor of human life, and forthwith reverse his engine, and put on the brakes. Clark v. Wilmington & W. R. Co. 109 N. C. 430, 14 L. R. A. 749, 14 S. E. 43. Persons operating a railroad train are not permitted to speculate, in such case, whether a trespasser will jump from the trestle, or lie down, or in some other way get out of harm's way, a moment after it becomes evident that he is insensible of the impending danger, or incapable of providing for his safety. The moment that a person goes upon such a bridge his peril is manifest and imminent, and the railroad employees, having this knowledge, are required to exercise reasonable care to avoid a collision. Purcell v. Chicago & N. W. R. Co. 109 Iowa, 628, 77 Am. St. Rep. 557, 80 N. W. 682; Central R. & Bkg. Co. v. Vaughan, 93 Ala. 209, 30 Am. St. Rep. 50, 9 So. 468. In such case no presumption can arise that the person in peril will take care of himself, and it is the imperative duty of the engineer, upon discovering a person in such situation, to endeavor to stop his train immediately. But, although the trestle is between a blow post and a public crossing, the omission of the company to observe the statutory requirements as to signals and checking speed before persons on the trestle are discovered is not negligence. Atlanta & C. Air-Line R. Co. v. Gravitt, 93 Ga. 369, 26 L. R. A. 553, 44 Am. St. Rep. 145, 20 S. E. 550. Even though the engineer of a train believes that a person will reach the end of the trestle in time to escape injury, he is deemed guilty of negligence if, having discovered the person's peril in time, he fails to stop the train or lessen its speed until too late to avoid a collision. Vanarsdall v. Louisville & N. R. Co. 23 Ky. L. Rep. 1666, 65 S. W. 858, 25 Ky. L. Rep. 1432, 77 S. W. 1103. A railroad company is guilty of negligence in running down a child upon a trestle 4 or 5 feet high, where it is seen by those operating the train when from 800 to 1,000 feet distant, and the train runs about 250 feet thereafter before any effort is made to check its speed, and even then an emergency stop is not made. St. Louis In Becker v. Louisville & N. R. Co. 110 Ky. 474, 53 L. R. A. 267, 96 Am. St. Rep. 459, 61 S. W. 997, which was an action for injuries to a boy of fourteen on a railroad trestle, while he was in the act of assisting a companion who had fallen through the cross-ties, it is said: "If it be conceded that the plaintiff was a trespasser, and that defendant owed him no duty except to protect him after discovering his peril, it is clear that, when discovered upon the bridge, the defendant should have given him ample time to have escaped. If he had simply been on the railroad track in the open country, it might be said that defendant had a right to presume that he would step off the track, and get out of the way of the train; but if a party, having started to cross a bridge of as much length as the one under consideration, had no means of escape except to reach the termination of the bridge, common humanity demands that, even if a trespasser, he should not be wantonly run over, but should have a reasonable chance to cross the bridge in safety." But, if a trespasser on a trestle is not seen until it is too late to stop the train before striking him, the railroad company is not liable for his injuries. Tennenbrock V. Southern Pacific Coast R. Co. 59 Cal. 269; Anderson v. Chicago, St. P. M. & O. R. Co. 87 Wis. 195, 23 L. R. A. 203, 58 N. W. 79; Shaw v. Missouri P. R. Co. 104 Mo. 656, 16 S. W. 832; Camden, G. & W. R. Co. v. Young, 60 N. J. L. 193, 37 Atl. 1013; Atlanta & C. Air-Line R. Co. v. Gravitt, 93 Ga. 369, 26 L. R. A. 553, 44 Am. St. Rep. 145, 20 S. E. 550. If, however, the trestle has been in constant use as a walk way for years, with the knowledge of the railroad company and its employees, so that persons may reasonably be expected to be present there, it is the duty of the company to use reasonable care to discover a person walking thereon, whether he is a licensee or a trespasser. Chesapeake & O. R. Co. v. Rodgers, 100 Va. 324, 41 S. E. 732; Cassida v. Oregon R. & Nav. Co. 14 Or. 551, 13 Pac. 438. Where an engineer, after seeing a man on a trestle, checked his train, and could have avoided a collision, but relieved the brakes, and made no further effort to stop, upon the man taking a position on a cap-sill, where others had escaped unhurt while a train was passing, the railroad was held not liable for an injury inficted by reason of the man not holding his head back far enough to escape the train. Little v. Carolina C. R. Co. 118 N. C. 1072, 24 S. E. 514. Opposed to the rule of the fegoing authorities that the situation of a person upon a railroad trestle constitutes in itself a condition of helplessness, demanding affirmative action by the servants of the railroad to avoid injury, there are a few cases holding that such duty does not arise until it becomes apparent that the person on the trestle will not get out of harm's way. Smalley v. Southern R. Co. 57 S. C. 243, 35 S. E. 489. And in Southern R. Co. v. Bush, 122 Ala. 470, 26 So. 168, where the injured party saw the approaching train when at the further end of the trestle, and in time to get off to a place of safety, but, instead, started to run across in front of the train, it is held that it was the duty of the engineer to begin to stop the engine only from the moment that the tres passer's conduct made it reasonably manifest that he did not intend to get out of the way, er could not reasonably extricate himself from his peril. In North Carolina, where the law imposes upon railroad companies the duty of maintaining a lookout for trespassers, a railroad company is liable for running down and injuring a person negligently walking on its trestle, and who is unable to save himself, if those in charge of the train discovered, or by the exercise of ordinary care might have discovered, the peril of the injured person, and might, by the exercise of such care, have avoided the accident. Bogan v. Carolina C. R. Co. 129 N. C. 154, 55 L. R. A. 418, 39 S. E. 808. And in West Virginia, where the same duty is imposed in relation to trespassers, the failure to discover two children sitting astride the guard rail on a trestle is culpable negligence, where the evidence tends to show they had been there for some time before being struck by the train, on a bright June morning, and the engineer had a clear view of the trestle for 1⁄2 mile. Gunn v. Ohio River R. Co. 42 W. Va. 676, 36 L. R. A. 575, 26 S. E. 546. On the other hand, in Indiana, where no liability is recognized for an injury to a trespasser, unless it is wilfully inflicted, a railroad company was not liable for running down a person on a trestle, where the trespasser saw the train at a distance of 2,000 feet, and having started to retrace his steps to the end of the trestle 100 feet distant the engineer believed he would escape until it was too late to stop the train. Ullrich v. Cleveland, C. C. & St. L. R. Co. 151 Ind. 358, 51 N. E. 95. This harsh rule seems to obtain, likewise, in Kansas. Mason v. Missouri P. R. Co. 27 Kan. 83, 41 Am. Rep. 405. 4. Falling on railway track. If a person on horseback is thrown from his horse upon a railroad track, in front of an approaching train, and is lying there in a stunned or insensible condition, it becomes the duty of those in charge of the train to use every means within their power to stop the train; and, if they fail to do so, and the jury are satisfied that such exertions, promptly employed, would have averted the injury, the railroad company is liable. Tanner v. Louis ville & N. R. Co. 60 Ala. 621. Where a woman fell twice upon a railroad track, in attempting to cross before an ap proaching train, and the employees in charge of the train saw her from the beginning to the end of the tragedy, and the evidence as to the distance of the train from her when she first stepped upon the track ranges from 6 to 500 feet, and that of the speed of the train from 6 to 20 miles an hour, the question whether the railroad company, in running over the woman, was guilty of negligence subsequent to her contributory negligence, is a question for the jury. Sullivan v. Missouri P. R. Co. 117 Mo. 214, 23 S. W. 149. In McKeon v. Steinway R. Co. 20 App. Div. 601, 47 N. Y. Supp. 374, the plaintiff, by a collision occurring through his negligence, was thrown from his wagon onto the track of the defendant, and, while lying there in an unconscious condition, was struck by one of defendant's cars. The trial court charged the jury to the effect that, if any negligence of the plaintiff contributed to the collision which caused him to be thrown upon the track, what followed was in like manner affected by that negligence, and he could not recover. Upon appeal, such instruction was held to be erroneous, the court saying: "It may, in view of the finding of the jury, be assumed that the negligence of the plaintiff placed him in the position where he is said to have been struck by the other car, and that, therefore, the injury there received by him was in some sense the consequence of his negligence. But it does not follow that this gave legal immunity to the defendant to run its car onto him. The negligence of a plaintiff which is effectual to relieve a defendant from liability for the consequences of his negligence must be proximate in such sense as to contribute concurrently to the result complained of. Although the injury may not have occurred but for the negligence of the former, his antecedent negligence may not be concurrent or simultaneous in such sense as to relieve the latter from the consequences of his negligence. In other words, when a plaintiff, by his negligence, has placed himself in a dangerous position, the defendant, advised of his situation, is not for that reason legally justified in failing to use reasonable care to not injure him." Likewise, where a woman while crossing the street was knocked down by a cab, and thrown upon the street car track, and while in that situation she was run over by one of the defendant's cars, the jury was instructed that her presence upon the track under the circumstances gave the car driver no legal license to run over her, but that he was bound to exercise reasonable care to avoid doing her any further injury. Mooney v. Third Ave. R. Co. 2 N. Y. City Ct. Rep. 366. If a boy is lying in a helpless condition upon a street car track, where the motorman of an approaching car, by the exercise of ordinary care, can discover him in time to avoid injuring him, but, instead, wantonly, recklessly, and negligently runs the car over him, the railroad company is liable, regardless of how the boy came to be on the track. Chicago City R. Co. v. O'Donnell, 207 Ill. 478, 69 N. E. 882. A street railway company is chargeable with negligence in running over a child who has fallen upon its track, at such distance as to allow ample time for the stoppage of an approaching car before reaching him, but who is not discovered by the driver by reason of his being engaged in conversation with passengers, with his back toward the horses. Ordinary care is not If a husufficient under such circumstances. man being is seen by an engineer or by a driver lying upon a railroad track, it is his duty to exercise the very highest care, and to make the greatest effort to avoid his destruction. v. Second Ave. R. Co. 3 Abb. App. Dec. 274, Affirming 2 Robt. 356. Mentz A contrary rule seems to be laid down, without apparent reason, in McDonald v. Metropolitan Street R. Co. 93 App. Div. 238, 87 N. Y. Supp. 699, where it is held that the falling of a boy upon a street car track 40 or 50 feet in advance of a car does not present a situation calling for the exercise of ordinary care to avoid injury, although the car might have been stopped within 10 feet. The attempt to show that the facts of this case present but a single situation not admitting of a subsequent act of negligence, which distinguishes it from Weitzman v. Nassau Electric R. Co. 33 App. Div. 585, 53 N. Y. Supp. 905, and makes the rule of the latter case inapplicable, is difficult of appreciation. If, after the boy fell upon the track, he was seen by the car driver at a distance of 40 or 50 feet, and the car could have been stopped within 10 feet, it would seem that the omission to stop the car was a failure of duty for which the railway company would be liable under the doctrine of the cases above cited. And where a boy, in crossing the street before an approaching car, stumbled and fell up on the track at such distance in front of the car as that, if traveling at the usual rate of speed, it would have reached him in about two seconds, and that was all the time the driver had to discover his peril, apply the brakes, and arrest the motion of the car before reaching him, and there was no evidence that by the exercise of vigilance the driver could have arrested the car in time to have avoided injuring him, the failure to stop the car before injury was held not to be negligence. Fenton v. Second Ave. R. Co. 126 N. Y. 625, 26 N. E. 967, Reversing 56 Hun, 99, 9 N. Y. Supp. 162. No recovery can be had for an injury to a child from being struck by an electric street car where the child fell upon the track in an attempt to cross the street in front of the car, and the motorman had the car so well under control that he stopped it in the "briefest instant of time" after the child fell, and he had reason to believe, until she fell, the child would cross the track safely. Stabenau v. Atlantic Ave. R. Co. 155 N. Y. 511, 63 Am. St. Rep. 698, 50 N. E. 277. In Griswold v. Boston & M. R. Co. 183 Mass. 434, 67 N. E. 354, where plaintiff was run over by an engine after falling upon a railroad track, and was unable to move, it does not appear whether those in charge of the engine discovered plaintiff's situation in time to have stopped before injuring her; but the court held that, being a trespasser, the defendant owed her no duty save that of refraining from wilfully or wantonly running her down. And no obligation rests upon a railroad company to stop its train to care for a trespasser who has fallen from another train to the space between tracks, where he is in such a position that he can be passed in safety, and injury only results by the trespasser making an imprudent movement, whereby a part of his body is thrust into danger, after a part of the train has passed. However, it is said by the court: "Had the deceased been lying on the track, where he must have been struck if he had not moved, the case would have been different." McKenna v. New York C. & H. R. R. Co. 9 Daly, 262. The duty of a railroad company to avoid injuring a person thrown upon its track, outside the limits of the highway, arises only when the perilous position of such person is seen or known. Western Maryland R. Co. v. Kehoe, 83 Md. 434, 35 Atl. 90. First. 5. Driving frightened horse. uation the courts have applied the commonlaw principle, that one must so use his own as not to injure another (Hudson V. Louisville & N. R. Co. 14 Bush, 303), and, while recognizing the right of the horseless vehicles to the use of the highway, have imposed upon their owners the duty of using ordinary care to avoid injury to those who are seen to be in peril from the operation of such vehicles. A horse seriously frightened is difficult to control, and is liable to become unmanageable; and, to the extent that he cannot be controlled, his driver is in a helpless situation. and a proper subject for that special care in avoidance of injury which the law requires as to other helpless persons. Street railroads being granted very great privileges out of the public right, their treatment of the public must be reasonable in return; so that if a person or a team, "through accident or misjudgment, or for any cause, be caught in a position of any peril by coming in collision or close contact with the cars, it is the duty of those who are managing the cars to use all possible effort, by slackening the speed of a car or stopping it altogether, in order to avoid injury. If a horse driven by a traveler appears to be restive or refractory at the sight of a moving car the movement of the car should be managed in such a way as to relieve, if possible, the traveler in his dilemma." Flewelling v. Lewiston & A. Horse R. Co. 89 Me. 585, 36 Atl. 1056. A motorman is supposed to know that his car is likely to frighten horses that are unaccustomed to the sight of such vehicles. Therefore, "it is his duty, if he sees a horse in the street before him that is greatly frightened at the car, so as to endanger his driver or other persons in the street, to do what he reasonably can in the management of his car to diminish the fright of the horse; and it is also his duty in running the car to look out and see whether. by frightening horses or otherwise, he is putting in peril other persons lawfully using the street on foot or with teams. In this way the convenience and safety of everybody can be promoted without serious detriment to anybody." Ellis v. Lynn & B. R. Co. 160 Mass. 341, 35 N. E. 1127; Thompson v. Holyoke Street R. Co. 170 Mass. 365, 49 N. E. 748; Sunderland v. Pioneer Fire Proof Constr. Co. 78 Ill. App. 102; Ft. Scott Rapid-Transit R. Co. v. Page, 10 Kan. App. 362, 59 Pac. 690; Owensboro City R. Co. v. Lyddane, 19 Ky. L. Rep. 698, 41 S. W. 578; Lincoln Rapid Transit Co. v. Nichols, 37 Neb. 332, 20 L. R. A. 853, 55 N. W. 872; McClellan v. Ft. Wayne & B. I. R. Co. 105 Mich. 101, 62 N. W. 1025; Meyers v. Brantford Street R. Co. 31 Ont. Rep. 309. If persons in charge of a street car discover a man with a runaway horse on the track, and that he may be saved from injury by stopping the car, it is their duty to stop. Thiel v. South Covington & C. Street R. Co. 25 Ky. L. Rep. 1590, 78 S. W. 206. A street railway company is liable for injuries resulting from one of its cars negligently General rule as to duty under such striking a frightened horse and its rider, al circumstances. The improved means of locomotion for the propulsion of vehicles using the public highway has materially increased the danger from accident to those using the highway for vehicles drawn by animal power. To this new sit though the horse was not seen by the motorman, by reason of his attention being attracted to a bicycle that was keeping pace with his car. Omaha Street R. Co. v. Duvall, 40 Neb. 29, 58 N. W. 531. "The sum of the adjudicated cases bearing upon the relative rights and duties of street And the same duty is imposed upon those operating steam railroads where their operation is likely to result in injury to drivers of frightened animals. cars and citizens traveling in vehicles drawn by | Cameron v. Jersey City, H. & P. Street R. Co. horses or other animals is, that both have a 70 N. J. L. 633, 57 Atl. 417. right to use the street, but that neither has an exclusive right. The operator of a street car is not necessarily obliged to stop the car every time a horse shies or scares at the approaching car; but, when the operator of the car sees that a horse is frightened at the car, it is his duty to manage his car in such manner as a man of ordinary prudence would do under the same circumstances; and it is always a question of fact for the jury whether such care in the running of the car has been observed. This duty may, or may not, lead to the necessity for bringing a car to a full stop. The duty of the company in this regard is just the same as the duty of one individual or citizen to another when they meet on the highway, and the horse of the one becomes frightened at the vehicle of the other, or at anything upon the vehicle of another." Oates v. Metropolitan Street R. Co. 168 Mo. 535, 58 L. R. A. 447, 68 S. W. 906. This statement of the law is cited with approval in Schafstette v. St. Louis & M. River R. Co. 175 Mo. 142, 74 S. W. 826. Where an electric car ran into a frightened horse, it was held that, "so long as the right of a common user of the tracks exists in the public, it is the duty of passenger railway companies to exercise such watchful care as will prevent accidents or injuries to persons who, without negligence on their own part, may not at the moment be able to get out of the way of a passing car. The degree of care to be exercised must necessarily vary with the circumstances, and therefore no unbending rule can be laid down." Gibbons v. Wilkes-Barre & Suburban Street R. Co. 155 Pa. 279, 26 Atl. 417. If a locomotive engineer sees a man with a wagon and team between tracks at a railway crossing, and that the team is scared and unmanageable, and by the exercise of reasonable care and diligence he can stop the train in time to avoid a collision, his failure to do so is negligence, for which the railroad company is liable, even though he resorts to means which seem to him best to avoid the accident. Pence v. Chicago, R. I. & P. R. Co. 79 Iowa, 389, 44 N. W. 686. Evidence that an engineer opened the steam cocks of his engine, and began to move the same, while plaintiff was trying to calm his frightened horse at a highway crossing, and thereby caused the horse to take greater fright, and to spring down an embankment, whereby plaintiff was injured, will support a verdict for plaintiff. Inabnett v. St. Louis, I. M. & S. R. Co. 69 Ark. 130, 61 S. W. 570; Toledo, W. & W. R. Co. v. Harmon, 47 Ill. 298, 95 Am. Dec. 489. A railroad company has no right to continue blowing a locomotive whistle in a city, town or village, for the purpose of giving a signal of its approach to the station, after the engineer discovers that a blast of the whistle already given has frightened a horse drawing a vehicle along the public road, and that the horse will probably be more frightened by continuing to blow till the signal is completed; the driver seated in the vehicle being engaged in an effort to control the animal. Akridge v. Atlanta & W. P. R. Co. 90 Ga. 232, 16 S. E. 81; Gulf, C. & S. F. R. Co. v. Spence (Tex. Civ. App.) 32 S. W. 329; Manchester South Junction & A. R. Co. v. Fullarton, 14 C. B. N. S. 54. Α motorman running a car at the speed of 8 or 10 miles an hour is negligent in not slackening the speed of his car, where, by the exercise of reasonable care, he might have seen, by the aid of electric lights, a colt, attached to a vehicle, shying at the approach of his car when a block distant, and that, when the car approached within 25 feet, the colt turned suddenly, and attempted to cross the track in front of the car. Marion Street R. Co. v. Carr, his duties, and without damage to the railroad 10 Ind. App. 200, 37 N. E. 952. If, by checking the speed of his car upon first perceiving the fright of a horse, a motorman would have been able to stop his car after the horse jumped across the track, his failure to take such precaution, in view of the peril of those in the vehicle to which the horse was attached, is negligence. Citizens' Street R. Co. v. Lowe, 12 Ind. App. 47, 39 N. E. 165. If a motorman in charge of a street car sees a horse frightened by its approach, and backing the wagon to which it is attached onto the track in front of the car, and that there is danger of a collision; and the car can be stopped in time to prevent a collision, the failure to stop is negligence. Richter v. Cicero & P. Street R. Co. 70 Ill. App. 196; Lexington R. Co. v. Fain, 25 Ky. L. Rep. 2243, 80 S. W. 463. If the motorman of a street car sees that a horse being led in the highway has become unmanageable, and that its fright is due to the approach of his car, it is his duty to put his car under such control as to be able to stop it, and to take all necessary precautions to that end; and the failure to do so is negligence. Even though there is reason for the blowing of the whistle of an engine, still, if the engineer sees that a horse in the highway will be frightened, and its driver probably injured, and he can desist from blowing it consistently with company, it is his duty to refrain from blowing it for a reasonable time. St. Louis S. W. R. Co. v. Kilman (Tex. Civ. App.) 86 S. W. 1050. Second. Basis of duty in such cases. It is not the danger of collision which is the basis of the duty in such cases, but the equality of right as between persons using the highway, and the obligation of each to use the same with a reasonable regard for the safety and convenience of others. This "reasonable regard" involves the exercise of ordinary care to prevent one's conduct or property becoming an instrument of injury to others lawfully using the highway; and, when such other persons have been rendered helpless, in a measure, through the fright of their animals, ordinary care as to them means such especial care as may reasonably be expected of one under the circumstances of the particular situation to prevent the threatened injury. Ellis v. Lynn & B. R. Co. 160 Mass. 341, 35 N. E. 1127; Oates v. Metropolitan Street R. Co. 168 Mo. 535, 58 L. R. A. 447, 68 S. W. 906. |