Hahn

The “negligence’’-charged against the defendant is, that when the locomotive was opposite the horses of plaintiff, *607 the cylinder-cocks were opened bjr, or under the direction of the engineer, and, as a consequence, the steam escaped in large quantities, and was cast violently against the horses, causing them to run away from the d^fmrdufflrt; and to throw him from his wagon. Both plaintiff and defendant were entitled to use the street, and it is not pretended that, if the horses were frightened by the appearance of the train, or by the ordinary noise of its passage, the plaintiff could recover.

Mor should plaintiff have recovered if the runaway was caused by the blowing off of the steam, if this was necessary in the prudent management of the engine. The claim of the plaintiff is that the steam was suffered to escape unnecessarily, when the locomotive was immediately opposite to the horses. The evidence of the plaintiff tended to show that if the steam was blown out unnecessarily, the opening of the cocks constituted a willful and malicious trespass on the part of the engineer or employee of defendant. If this point had been presented on motion for non-suit, or au instruction…