Negligence. Railroad. In an action against a railroad company for injuries to the plaintiff's horse caused by his being frightened by a freight train of the defendant when standing near the track as the train approached, it is no evidence of negligence on the part of the defendant that the train was running faster than was allowed by the regulations approved by the railroad commissioners, even if the rate of speed had anything to do with the accident, as such regulations are made for the safety of the trains and in no way affect the duty of the railroad company toward the owner of the horse.
In an action against a railroad company for injuries to the plaintiff's horse caused by his being frightened by a freight train of the defendant when standing near the track as the train approached, the fact that the train made a noise is no evidence of negligence on the part of the defendant, if it does not appear that the train made any more noise than reasonably might be expected of such a train or that the noise that was made was due to any negligent act.
R.L.c. 111, § 120, requiring a railroad company to erect and maintain suitable fences upon both sides of its railroad, is intended only for the protection of the owners of adjoining lands, and imposes no duty on a railroad company to enclose any part of a freight yard so as to protect horses standing near its tracks from being frightened by freight trains.
HAMMOND, J.
Whatever may be thought of the conduct of the plaintiff in leaving his horse at a place immediately adjoining the railroad track, where he must have known that trains might approach at any time, when he might have selected a safer place, we think that the ruling that the plaintiff could not recover should stand upon the ground that the accident is not shown to have been due to any negligence of the defendant.
The plaintiff seems to rely upon the speed of the train as showing negligence, but it is not shown that the speed as such was unusual. If it be contended that it was faster than allowed by the regulations approved by the railroad commissioners and that this fact of itself is evidence of negligence, the answer is that these regulations were made for the safety of the trains and they in no respect altered or affected the duty owed to one in the situation of the plaintiff. Moreover it is the merest conjecture whether the speed of the train had anything whatever to do with the accident. The plaintiff also complains of the noise of the train, but trains always make noise, and there is no evidence that this train made any more noise than may be reasonably expected of such a train, much less that the noise was due to any negligent act of the defendant.
As to the contention of the plaintiff that he had the right to go to the jury on the question of the negligence of the defendant in the matter of fences and barriers, the answer is that in so far as this contention is based upon the statute requiring fences and barriers to be put up along the line of the railroad, the statute was intended only for the protection of adjoining owners; Pub. Sts. c. 112, § 115; R.L.c. 111, § 120; Byrnes v. Boston Maine Railroad, 181 Mass. 322, and cases there cited; and in so far as it rests upon other grounds there is no evidence of negligence. Such an arrangement of track and freight yards is of common occurrence in the country.
Judgment on the verdict.