ERROR to Wayne County Circuit Court.

Action to recover damages for personal injuries. Defendant brings error.

Russell & Campbell, for appellant.

James H. Pound, for appellee.

Case stated.

GRANT, J.-The defendant owns and operates an electric railway upon Dix avenue, in the city of Detroit, under authority granted by the city. At the time of the accident complained of, the street was not paved; the track was laid in the center, and was several inches higher than the roadway upon either side, thereby rendering it somewhat difficult for persons to drive from one side to the other, except at the street crossing. The situation of Dix avenue, and of the streets crossing it near where the accident occurred, is as follows:

The land in the vicinity was open common, except three houses situated at the corner of Dix and Military avenues. Plaintiff had a horse and buggy, and was driving on the right hand side of the street. His statement is substantially as fol

lows: He had crossed Campbell avenue, and was within about 25 feet of Cavalry avenue, when he saw the cars coming around the bend, about 350 feet distant. He stopped his horse, put up his hand as a signal to stop the train, jumped out of his buggy, and took his horse by the head. He judged that the cars were about half way down when he caught his horse by the head, and that they were slowing down. The horse began to exhibit signs of fear, and he led him across. the sidewalk into the open field. The horse dragged plaintiff around the open field, and finally turned, and dragged him across the street onto the track, where plaintiff fell and was injured, and the horse ran away. When the horse began to run with the plaintiff, the car, according to his own testimony, was about 150 feet distant, and slowing down, and stopped before reaching the point in the street where plaintiff stopped his horse. The testimony on the part of the defense was that the person in charge of the car saw plaintiff when about 400 feet distant; that he saw signs that the horse was frightened; that he rung the gong when nearing the bend, which statement is not disputed; that he ran slowly for about 250 feet, when he brought the car to a stop; that the horse did not cross the track, but that he came back over the sidewalk into the street, then turned around, and ran across the sidewalk again into the open lot; that plaintiff stumbled on the sidewalk as the horse was going over it the second time; and that all usual and necessary precautions were taken by the defendant's servants. The negligence alleged is that defendant did not observe sufficient caution in coming around the bend to alarm plaintiff, so as to enable him to avoid the trouble complained of; but that, fendant. without notice, and at a great rate of speed, it caused its cars to come suddenly around the bend as plaintiff was approaching. There is no evidence that any other notice than the noise produced by the running of the cars and the ringing of the gong would have been of any avail, nor that there was not sufficient. Plaintiff has not even suggested the necessity of any other notice. But any question of notice is eliminated from the case by the plaintiff's own testimony. He was familiar with the situation. He had driven there before, and had had trouble with other horses. He was on the lookout, and saw the cars as soon as they reached the bend. Any addi. tional noise for the purpose of giving notice would certainly have tended to increase his horse's fright, without being of any possible use. The record fails to show any negligence on the part of the defendant. The rate of speed is not shown to have been unusual, or excessive. The horse

Negligence al

leged in de

Plaintiff's contributory

negligence a bar to recor-

ery.

evidently became restive and somewhat frightened when the cars first appeared in sight, 350 or 400 feet distant. Defendant's servants in charge of the cars were not under obligations to immediately stop them. They had fulfilled their duty by commencing to run more slowly. If such companies were obliged to stop their cars at that distance upon seeing a horse, with his owner holding him by the head, in apprehension of fright, or in actual fright, they could not meet the demands or the requirements of public travel. The defendant had an equal right to the use of the street with its cars as plaintiff with his horse. Each was bound to exercise due care and caution; and this the defendant did. It was evidently the sight of the moving cars, not their speed, that frightened the horse. They were from 150 to 200 feet distant when plaintiff and his horse went over the sidewalk into the common. It is difficult to see how the defendant's servants were under any legal obligation to act differently from what they did.

The plaintiff is not entitled to recover on his own statement. He took his horse, three years old, which was unused to the place or the cars, and for the purpose of trying him. He testified: "I never had the horse there before. I wanted to see how he acted." He knew the danger of his horse becoming frightened, and yet he took him into this dangerous place knowing that the cars were coming. There was ample opportunity for him to have turned into another street where there was less danger in subjecting his horse to the sight of the cars. It was also admitted upon the hearing that there were other streets by which he might have reached his destination. It is common knowledge that such vehicles, when first seen in motion, have a tendency to frighten animals. When one deliberately drives into such a place as this was, with a full knowledge of the situation and danger, for the express purpose of testing his horse, he is guilty of contributory negligence, and, under the decisions of this court, is not entitled to recover. This disposal of the case renders it unnecessary to discuss the other assignments of error. The judgment must be reversed, and a new trial ordered, with costs of both courts. The other justices concurred.

Street Railway-Frightening Horses.-See Peoples' Pass. R. Co. v. Hazel (Pa.), 43 Am. & Eng. R. Cas. 400.

In North Side St. R. Co. v. Tippins, (Texas Ct. of App., Nov. 1, 1890), 14 S. W. Rep. 1067, it appeared that the plaintiff hitched his team to a post on a street occupied by an electric street railway. The defendant's electric street car in passing, frightened the horses which broke loose and ran away. The driver of the street car, at the time of the accident, was sounding a gong while the car was moving along the track. This noise was made to warn persons of the approach of the car, and to prevent accidents. Held, that it could not be said that the accident was caused by the negligence of

the street car company. The court said: "We conclude, therefore, that the sounding of the gong did not constitute negligence. Appellant had the legal right to operate its street cars upon said street, and could only be liable in damages for injury caused by the carelessness of those operating them. It was not shown that the driver of the car was aware that appellee's horses were frightened, and would probably break loose and cause injury to appellee's property unless he ceased to sound the gong. In other words, it was not made to appear by the evidence that, by the use of ordinary care and prudence, the driver of the car could have prevented the injury. It was the duty of the driver to watch the track upon which the car was being propelled, and to avoid collisions and accidents upon the track. He was not required, we think, to keep a lookout for teams not upon or approaching the track. He might well act upon the presumption that teams not upon or approaching the track, but which were standing on the sides of the street, were seemingly hitched, or, if not so hitched, were not liable to become frightened and run off. Hargis v. St. Louis, A. & S. R. Co., 75 Tex. 23. Because the evidence fails to show a good cause of action, the judgment is reversed and the cause is remanded."

Injury Caused by Defective Street Railway Track.-In Nivette v. New Orleans City & L. R. Co., (Louisiana, Dec. 15, 1890), 8 So. Rep. 581, it was held that where a wagon is driven from a street railway track, and the occupant is thrown from it by the jolt of the wagon, incident only to the turning out of the track, the railroad company is not responsible in damages. The proof of the general bad condition of the street alone is not sufficient for the plaintiff to recover. The proof must be specific that the accident was caused by the defect in the street specially alleged and referred to in the petition as the immediate cause of the accident.

In Cowan v. Muskegon R. Co. (Mich. Sup. Ct., Feb. 27, 1891), 48 N. W. Rep. 166, it appeared that at the time of the accident the defendant street railway company was engaged in extending and laying its tracks, and had excavated and dug up the ground in a certain street. Plaintiff's buggy was being driven upon that street in the night time and coming upon a heap of dirt thrown up by the company, was capsized and injured. Plaintiff's declaration failed to allege that the earth was allowed to remain in the street for an unreasonable time, or that there were no lights or barriers. Held, that there could be no recovery, since it was not negligence on the part of the defendant merely to excavate while engaged in laying its tracks. The court said: "We think the court should have directed a verdict for the defendant. In the ordinary course of operating its street railway the defendant was engaged in repairing and laying its track, which it had the undoubted right to do; and it was not negligence for it to excavate and throw up earth while thus engaged. The proofs do not show that the earth was allowed to remain there for an unreasonable time, nor does the decla- · ration allege that it was allowed to remain there in the night time, or without lights or barriers. Again, the declaration avers that Call was driving at the time of the accident, while the proofs showed that the young lady was driving, and the declaration contains no averment that she was exercising due care. Not only is there a material variance between the declaration and the proofs, but the declaration fails to set forth a cause of action. The judgment is reversed and a new trial granted."

UNITED ELECTRIC R. Co. et al.

ย.

SHELTON.

(Tennessee Supreme Court, December 7, 1890.)

Electric Street Railway-Live Wire-Injury to Horse.-A broken telephone wire fell across the trolley wire of an electric street railway, and while resting upon it, plaintiff's horse, being driven along the street, came into contact with it, and was instantly killed. There was no guard wire over the trolley wire, and the condition of the telephone wire was such as to arrest the attention of prudent men. Held, that both the telephone company and the railway company were liable for the injury.

APPEAL from Circuit Court, Davidson County.

Steger, Washington & Jackson and Vertrees & Vertrees, for appellants.

John L. Nolen, for appellee.

TURNEY, C. J.-Shelton's horse was killed by coming in contact with a wire of the telegraph and telephone company, which had fallen across the trolley wire of the Case stated. electric railway company. The wire of the telephone company had become much impaired. The falling of a wall of a burning building broke a pole of the telephone company, breaking the wires at several points. At the point of the accident, the telephone wires crossed the railway track above the trolley. A broken wire fell across the trolley wire, and, while resting on it, the horse came in contact with it, and was instantly killed. There was no guard wire over the trolley wire. The case was tried by the circuit judge without the intervention of a jury. The condition of the telephone wire was such as to arrest the attention of a prudent man engaged in the business of either company. The circuit judge found, under the facts, that both companies were guilty of negligence, and responsible for the loss, and panies negli. gave judgment accordingly. The judgment is correct. While it was the primary duty of the telephone company to see that its wires were in a reasonably safe and sound condition, and protected against the contingency of falling, it was also a duty of the electric company to see that its trolley was in like manner, protected from such contingency. While it was the duty of the one company not to use unsound and unprotected wires, it was equally the duty of the other not to operate its road under

Both com

gent.