The Supreme Court affirmed the judgment, of the District Coui’t on February 28, 1870, in the following opinion per:

We discover no error in the bills of exception, or the non-suit. Whether the horse took the road he probably would take, was a question for the jury, to be determined upon the circumstances, rather than upon the mere opinion of the witness as to what a horse might. do. The question was" very indefinite and not founded on the facts. We cannot say there was error in refusing-to allow it to be answered.

The train was rightfully travelling the company’s track. But it can scarcely be said that a frightened horse, rushing madly across it, even though in the route of a public highway, is crossing in a proper manner. It would be improper of course to run him down with the engine, or not to take proper precaution' to avoid unnecessary injury. This precaution the engineer took, when the horse first crossed the railroad track by coming to a full stop of his train, before reaching the crossing. But after the horse had crossed, and was passing along a road of three outlets, one of ■which turning off at right angles recrossed the track, it cannot be pronounced evidence of negligence, that the engineer put on a full head of steam to continue his trip. He had a right to proceed, and was not bound to presume that the horse would recross the track within five hundred feet. Whistling was of no importance. . It could be no signal of warn*458ing to a horse, and would only have increased his fright if ha were near.

"We discover no evidence of negligence to be submitted to a jury; and the

Judgment is therefore affirmed.