In Gibson v. Leonard, 143 Ill. 182, it was held that a licensee cannot recover for damages sustained by reason of failure of the owner of a building, wherein an elevator was situated, to observe the requirements of an order enacted for the sole benefit of the employees of such owner.

See also Beehler v. Daniels, 19 R. I. 49.

SAN ANTONIO EDISON COMPANY v. BEYER. Court of Civil Appeals, Texas, June, 1900.

HORSE FRIGHTENED AT STREET CARS - EVIDENCE - SIMILAR ACCIDENTS. — In an action to recover damages for injuries sustained by reason of plaintiff's horse being frightened at defendants' street cars, which were negligently left standing upon its track on a bridge, it was not error to permit testimony that other horses had become frightened at the cars standing at the same place on the bridge where plaintiff's horse took fright.

APPEAL from District Court, Bexar County.

Action by Herman Beyer against the San Antonio Edison Company for damages for a personal injury. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

This suit was brought by appellee against appellant to recover damages for personal injuries alleged to have been sustained by reason of his horse being frightened at the cars of appellant, alleged to have been negligently left by it standing upon its track where it extended across a bridge over the San Antonio river, reaching from Garden to Navarro streets, in such a manner as was calculated to frighten horses making an exit from the end of the bridge upon which the cars were standing. It is averred in appellee's petition that defendant negligently had three of its cars placed in such a manner on said bridge as to partially obstruct exit therefrom, and prevent retreat after getting on the bridge opposite said cars, and that on April 20, 1897, while appellee was crossing said bridge in his wagon, which was drawn by a horse, his horse became frightened at the cars so negligently placed on the bridge by defendant, and became unmanageable, and by reason thereof kicked and stamped upon the appellee, and caused the wagon to run over him, and thereby inflicting upon him permanent injuries. The appellant answered by general denial, and specially that it was not negligence to place the cars upon said bridge; that its track was torn up beyond said bridge, rendering it impossible for it to reach the car sheds for the purpose of storing its cars; that under the ordinance of the city of San Antonio it was compelled to operate its cars north

of the bridge; and that when its cars were not in use it left them standing upon the bridge as the most convenient place. It denied that the cars so left were calculated to frighten a gentle horse, and that appellee's horse was frightened thereby. It also alleged that plaintiff's injuries were the result of his own negligence in driving a vicious and wild horse, and, after discovering that he was frightened and unmanageable, attempting to lead him into a place of danger which was open and apparent. The facts were reasonably sufficient to show that appellant negligently left its cars standing upon the bridge extending from Garden to Navarro streets, on a public highway in the city of San Antonio, in a manner alleged by appellee in his petition, and that such cars, considering their character and situation upon such bridge, were reasonably calculated to frighten horses of ordinary gentleness; that appellee's horse was one of ordinary gentleness, and while being driven by appellee across said bridge became frightened at the cars of appellant so negligently placed thereon; and that, by reason of his fright caused by said negligence of appellant, the appellee, while trying to control his horse, was knocked down, stamped upon, and run over by the horse and wagon, and thereby sustained personal injuries, to his damage in the sum of $3,450. The appellee was guilty of no negligence proximately contributing to his injury.

DENMAN, FRANKLIN, COBBS & MCGOWN and HOUSTON BROS., for appellant.

H. C. CARTER and PERRY J. LEWIS, for appellee.

NEILL, J. (after stating the facts). Where a horse of ordinary gentleness becomes frightened at objects reasonably and naturally calculated to frighten horses, which one has negligently placed and permitted to remain in the highway, and an injury results without contributory negligence, the one who so negligently has permitted such objects to remain in the highway will be liable for the damages occasioned by such injury, unless the party injured is guilty of contributory negligence. City of Weatherford v. Lowrey (Tex. Civ. App.), 47 S. W. Rep. 34; Elliott, Roads & S. 449. Whether the object is in its nature calculated to frighten horses of ordinary gentleness is a question for the jury to determine from a consideration of its character, situation, the amount of travel on the highway, and other like circumstances. Thomp. Neg. 778; Lawrence v. Mt. Vernon, 35 Me. 100; Ayer v. City of Norwich, 39 Conn. 376, 12 Am. Rep. 396. Upon the question as to whether the natural tendency of the object is to frighten horses of ordinary gentleness, evidence that other horses of the same character have been frightened at the same object is admissible. Darling v. Westmoreland, 52 N.

H. 401, 13 Am. Rep. 55; Crocker v. McGregor, 76 Me. 282, 49 Am. Rep. 611; Railway Co. v. Hill, 71 Tex. 451, 9 S W. Rep. 351; Patterson v. City of Austin (Tex. Civ. App.) 39 S. W. Rep. 976. We are of the opinion, therefore, that the trial court did not err in allowing the appellee to prove by Emil Connering that a few days. prior to the accident in which appellee was injured Connering's horse became frightened at the cars of appellant standing at the same place on the bridge where appellee's horse took fright.

The appellee in describing the cars testified that they had curtains. on the sides. The objection to this testimony, upon the ground. that it was not warranted by the allegations in the petition, is untenable. It was not necessary for the appellee to allege the cars had curtains on them in order to make such proof. The evidence is simply descriptive of the cars. Our conclusions of fact dispose of the assignment which complains that the verdict is not sustained. by the evidence adversely to appellant.

There is no error in the judgment, and it is affirmed.

GULF, COLORADO AND SANTA FE RAILWAY COMPANY v. BELL.

Supreme Court, Texas, June, 1900.

PASSENGER INJURED IN COLLISION — CONTRIBUTORY NEGLIGENCE - INSTRUCTION. — In an action to recover damages for injuries sustained in a collision between a passenger train and a freight car, it appeared that plaintiff was a passenger on defendant's train, and had been asleep in a chair car, and when approaching his station the conductor aroused him; that he arose and stood in the aisle some eight or ten feet from the smoking compartment in the front end of the car, with the train still moving at the usual speed; that while so standing the train struck a freight car, which had been driven close to the main track by a storm, and threw plaintiff against the smoking compartment. Held, that the facts did not raise the question of plaintiff's contributory negligence so as to require the court to submit any charge upon that issue (1).

CERTIFIED question from Court of Civil Appeals of Third Supreme Judicial District.

Action by W. D. Bell against the Gulf, Colorado & Santa Fe Railway Company for injuries. Judgment for plaintiff, and defendants

1. See NOTE On Passengers INJURED IN COLLISIONS ON STEAM ROADS, at end of this case.

appealed to the Court of Civil Appeals of the Third District. certification of questions.

SIMS & SNODGRASS, J. W. TERRY, and CHAS. K. LEE, for appellant. COCKRELL & HARDWICKE, J. W. BAKER, and THEO. MACK, for appellee.

WILLIAMS, J.-The Court of Civil Appeals of the Third District has certified to us for decision this question: “Do the facts stated raise the question of contributory negligence on the part of plaintiff, so as to require the court to submit any charge upon that issue?" The following are all the facts stated affecting the question: A wind and rain storm, on the night of May 15, 1895, had driven a train of stock cars, left on a siding at the town of Coleman, so that the end of one of them projected upon the main line of defendant's track from Brownwood to Coleman so as to obstruct it. Plaintiff, on the same night, was a passenger on defendant's passenger train from Brownwood to Coleman, and had been asleep in a chair in the chair car between the two places. When nearing Coleman, the conductor aroused him, saying, "We are at Coleman." Plaintiff arose, and stood in the aisle, some eight or ten feet from the smoking compartment in the front end of the car, with the train still moving at the usual speed; and about that time the train, by the negligence of defendant's servants, struck the freight car before mentioned, and threw plaintiff against the smoking compartment. Passengers had

ample time to get off the train after it stopped. A rule of the company, of which plaintiff is not shown to have been aware, required that passengers keep their seats while the train was in motion, except to get water or to go to the water-closet. It was the habit of passengers to walk about in the car when in motion, with which the conductor did not interfere, except in cases of persons who he thought did not know what they were about. The rule of the company must be left out of the question, because it is not shown that plaintiff knew or ought to have known of its existence. Upon the facts as stated, we are of the opinion that no question of contributory negligence on part of plaintiff properly arises. From the circumstances, as related in the certificate, the only fair inference which the jury could have drawn as to plaintiff's reason for arising from his seat would have been that the act was done in response to the statement of the conductor that he was at his destination for the purpose of leaving the train. It does not appear that there was time for him to have realized any necessity for resuming his seat before the collision happened. We do not think that upon these bare facts, to which we are confined, a charge should have been given under which the jury would have been permitted to find the

plaintiff guilty of negligence; nor do we think that such facts would support such a verdict even in this court. It is said in the authorities that the question whether or not the act of standing up in a coach while the train is in motion is negligence on the part of a passenger is one of fact for the jury; and it is undoubtedly true that, if the circumstances raise a question upon the subject, it is one of fact. Fetter, Carr. Pass., p. 420; 5 Am. & Eng. Enc. Law, 681, 682, and cases cited. But in such investigations, as in all others, the court must first determine whether or not the facts in evidence are sufficient to make an issue. There must, in all cases, be special circumstances surrounding and characterizing the act of standing in the car. If these fairly admit of question as to whether or not the act was negligent, a case is made for the jury; but if they leave no doubt, and suggest no question of the kind, there is nothing for the jury to determine. For this reason the circumstances of the particular case must be regarded in deciding such questions as that before us, as slight differences in facts may determine the necessity of leaving the matter to the jury. There is nothing in the authorities cited which conflicts with these views. In those relied on by appellant, it was simply held, in answer to the contention of the facts of the cases, that the plaintiffs had been guilty of contributory negligence, that the acts relied on were not negligence per se, and that the question of negligence vel non had been fairly submitted to the jury. This was an answer sufficient for the cases the courts were considering. Barden v. Railway Co., 121 Mass. 426 (1); Morgan v. Southern Pac. Co., 95 Cal. 501, 30 Pac. Rep. 601 (2). The facts in the case of Harris v. Railroad Co. (Mo. Sup.) 6 S. W. Rep. 325 (3), so obviously differ from those here in question that special comment upon it is unnecessary. We answer the question in the negative.

NOTE ON INJURIES CAUSED BY COLLISIONS ON STEAM RAILROADS, EITHER BETWEEN TRAINS OR BY TRAINS WITH ANIMALS,

BY WHICH PASSENGERS ARE INJURED.

General observation. A railroad company is liable in damages to a passenger injured by a collision caused by the carrier's negligence. Farlow v. Kelly, 108 U. S. 288, 11 Am. & Eng. R. Cas. 104; Milwaukee, etc., R. Co. v. Arms, 91 U. S. 489; Truex v. Erie R. Co., 4 Lans. 198; Bunting v. Hogsett, 139 Pa. St. 363,

1. Barden v. Boston, Clinton & Fitchburg R. R. Co., 121 Mass. 426, is reported in 9 Am. Neg. Cas. 458.

501, is reported in 2 Am. Neg. Cas. 196.

3. Harris v. Hann. & St. J. R. R.

2. Morgan v. So. Pac. Co., 95 Cal. Co., 89 Mo. 233, is reported in 9 Am.

VOL. VIII-II

Neg. Cas. 518.