fright. The roadway was about 16 feet wide, and after plaintiff led his horse to one side of the road, defendants approached and stopped opposite the horse. Neither party spoke, and defendants started to proceed. Immediately a volume of vapor, described as being about as large as a hat, was spurted out from a tube in the rear axle, under and against the horse, accompanied by a hissing sound, and a strong odor of gasoline. The horse became unmanageable, and the plaintiff was injured. The horse was about 18 years old, and prior to this accident was regarded as trustworthy and not easily frightened. Held, that the case was for the jury; that a jury would be warranted in concluding that defendants had full control of their machine, and should have known the hazard following their progress, which could have been relieved of all possible danger by remaining stationary for but a moment.4 40

§ 620. Excessive speed. If a motorist drives his machine at a rate of speed that is unreasonable in the circumstances, and a team is frightened thereby, he is liable for the consequent injuries.41

The following instruction was held to properly present the issue in the case from which it was taken: "If the jury believe from the evidence that on the occasion plaintiff was injured the defendants were operating an automobile along the public highway at a speed greater than was reasonable and proper, having regard to the traffic and use of the highway, and if they further believe from the evidence that by reason of that fact, if the jury find it to be a fact, the plaintiff's horse became frightened and overturned his wagon whereby the plaintiff was injured and his property damaged, the jury should find for the plaintiff." 42

Where

§ 621. Speed greater than reasonable and proper, etc. there was evidence that the defendant, on his motorcycle, met the plaintiff, driving a horse and buggy, at a place where the road was only 12 to 15 feet wide, and on the right of which was a ditch 18 or 20 inches deep; that defendant passed at a speed of 25 to 40 miles an hour; that just about the time defendant was opposite the horse he sounded his whistle, making an uncommon noise, and scaring the horse so that it upset the buggy and caused the injuries complained of, it was held that the defendant was operating his motorcycle at a rate of speed greater than was reasonable and proper, having regard to the traffic and the use of the way, and so as to endanger the life and limb of another, and that defendant was properly held liable for the injuries incurred by plaintiff.43

§ 622. Overtaking and passing horse-drawn vehicles. An instruetion charging the jury in effect that it is the duty of an automobile driver to give warning to the driver of a horse-drawn vehicle in front before attempting to pass; that the sounding of an automobile horn

40 Reed v. Snyder, 38 Pa. Super. Ct. 421 (1909).

40 Haynes Auto. Co. v. Sinnett, 46 Ind. App. 110, 91 N. E. 171 (1910).

42 East Tennessee Tel. Co. v. Cook, 155 Ky. 649, 160 S. W. 166 (1913).

43 Hutson v. Flatt, 194 Ill. App. 29 (1915).

is the usual way of giving warning; that, while there was no statute on the question at the time of the accident, it was the custom for a driver, coming up behind another vehicle and passing it, to turn to the left, and of the driver of the vehicle ahead to turn to the right, was held to properly state the law."

A statute requiring the operator of an automobile to stop his machine when it appears that a horse is becoming frightened and to remain stationary until the horse or horse-drawn vehicle has passed, is not applicable when an automobile is overtaking a horse drawn vehicle.45

"To say that the motor should stop while the horse passes it going in the same direction would be an absurdity."46 But this, of course, does not affect the duty of an autoist overtaking and passing a horse or horse-drawn vehicle to exercise due care. 47

Where there was evidence that the defendant, driving his automobile, approached the hack in which plaintiff was riding from the rear; that the team drawing the hack was already somewhat frightened from having passed an automobile; that the plaintiff saw the defendant approaching, and stood up in the hack and waved to him, and called out to him, begging him not to pass them; that defendant nevertheless came on at a high rate of speed with the machine making a great deal of noise; and that as he passed the team became very much frightened and ran away, overturning the hack and injuring the plaintiff, it was held that the jury were warranted in finding that defendant failed to exercise proper care to avoid frightening the team.48

In a case in which there was evidence tending to show that, without any warning signal, the defendant's automobile approached directly behind plaintiff's cart, that the automobile turned out barely enough to avoid colliding with it, was within a few feet of the horse when passing, and turned back into the road when no more than 10 feet beyond the horse, the court said: "No argument is required to demonstrate that an automobile, making little noise in moving as in this instance, and passing as the evidence tended to show this did, would be likely to frighten an ordinarily well-broken horse; and whether the defendant, in operating it as he did in passing, exercised the caution an ordinarily prudent man would in like circumstances, was for the jury to determine."' 49

In an action to recover for injuries caused by the plaintiff's team taking fright at defendant's automobile as the same overtook and was passing the team, and in which the plaintiff's testimony was that the approach of the automobile was sudden and without warning, and the defendant testified that it was not; that he gave a warning signal when about 100 feet away, whereupon the driver looked back and drove to the right; that he then drove on, seeing no manifestation of

44 Koenig v. Sproesser, 161 Wis. 8, 152 N. W. 473 (1915).

45 Fleming v. Oates, 122 Ark. 28, 182 S. W. 509 (1916); Smith v. Hersh, 161 Ill. App. 83 (1911).

46 Smith v. Hersh, 161 Ill. App. 83 (1911).

47 Smith v. Hersh, 161 Ill. App. 83 (1911).

48 Fleming v. Oates, 122 Ark. 28, 182 S. W. 509 (1916).

49 Delfs v. Dunshee, 143 Ia. 381, 122 N. W. 236 (1909).

fright by the horses, and did not stop until the buggy suddenly went into the ditch, it was held error to instruct the jury without qualification that if defendant approached the buggy and failed to stop his automobile soon enough to prevent frightening the horses and thereby caused the runaway, then plaintiff could recover. "Nothing was therein said about the approach being sudden or unknown to plaintiff, whereby the horse took fright at the car's sudden appearance and before the occupants of the buggy could take any precautions for their safety or give defendant the statutory signal to stop by the raising of the hand, nor (in case the approach was not sudden and without warning) was anything in said instruction requiring the jury to find that the horses' fright was observable to or could have been seen by defendant before he was required to stop.

750

Where a statute required that the driver of an automobile approaching any vehicle drawn by horses shall operate, manage and control the same in such a manner as to exercise every reasonable precaution to prevent the frightening of such horses and to insure the safety and protection of the person driving the same, and that every automobile shall be provided with a suitable bell, horn or other means of signaling, and it was shown that the defendant, approaching from the rear, ran his automobile to within ten feet of the left hind wheel of the plaintiff's wagon without sounding a warning of his approach, and plaintiff's horse became frightened and injured the plaintiff, it was held that, in view of the provisions of the statute, the jury were warranted in finding for the plaintiff.51

§ 623. Driving close to team. Driving an automobile close to a horse on the public highway is not of itself evidence of negligence, the operator being otherwise in the exercise of due care.52

The duty of the driver of an automobile is the same whether his machine is being driven within three feet or within thirty feet of an animal. The nearness with which a machine is run to an animal does not constitute negligence unless it is done purposely to cause fright or unless the driver, before going near, discovers, or in the exercise of ordinary care should discover, that running the machine close to the animal will frighten it.53

In action against two defendants for the death of driver of a hearse whose horses were frightened by defendants' automobiles, evidence that machine of one passed so close to the team as to scrape the tip of the pole presents à question for the jury as to negligence of such defendant.54

Action was brought by a boy to recover for injuries incurred when the mule he was driving took fright at defendant's automobile and ran away, and the evidence in his behalf tended to show that he was seated in a buggy, to which the mule was hitched, on the side of a city street; that the mule's head was some three or four feet from a

50 Fields v. Sevier, 184 Mo. App. 685, 171 S. W. 610 (1914).

51 Gifford v. Jennings, 190 Mass. 54, 76 N. E. 233. See also, Murphy v. Wait, 102 App. Div. 121, 123, 92 N. Y. Supp. 253.

52 Walls v. Windsor, 5 Boyce (28 Del.) 265, 92 Atl. 989 (1915).

53 Shelton v. Hunter, 162 Ky. 531, 172 S. W. 950 (1915).

54 Zelezmy v. Birk Bros. Brew. Co., 211 Ill. App. 282 (1918).

concrete foot crossing that was four or five feet wide; that the automobile, driven by a young lady, came up the street facing the mule; that, as it approached, it was run from one side of the street to the other; that when the automobile came to the foot crossing, which was a few inches above the grade of the street, and when in about ten feet of the mule's head, and while running about eight or nine miles an hour, it was turned in the direction of the mule, and passed within three or four feet of him, although it might have been run some ten or fifteen feet from him; that about the time the automobile came upon the foot crossing the mule manifested some uneasiness by raising his ears; that about the time the automobile was even with the mule he lunged a few times and started to run.

In affirming judgment entered on a direct verdict in favor of defendant, the court in part said: "It does not seem to us that this evidence was sufficient to make out a case of negligence against the operator of the machine. The horn was not sounded as the machine approached the mule, nor was there any reason why it should have been. The speed of the automobile was not excessive, nor was the conduct of the mule, until the automobile had passed him, sufficient to put a person of ordinary prudence on notice that he was frightened or likely to run off. It is true that the mule raised his ears and gave some evidence of fright when the automobile was within a few feet of him, but it was then too late to stop the machine or take any steps towards preventing the further fright of the mule other than to go ahead, and this the driver did." 55

In a personal injury action there was evidence that the plaintiff was driving a single horse, which was old and well broken and ordinarily not afraid of automobiles; that he observed the defendant approaching in an automobile, and he pulled his horse to the right side as near as possible to a ditch; that the roadway was only 21 or 22 feet wide, with a ditch on either side; that defendant, traveling at 10 to 15 miles an hour, passed so close to plaintiff's vehicle that the track of the automobile was one or two feet from the wheel of plaintiff's buggy; that there was considerable mud and slush in the road, which the automobile was splashing on either side, and which it splashed toward the horse as it passed; that the automobile moved somewhat to the left and nearer the buggy, as it passed, and the plaintiff's horse suddenly lurched, overturning the buggy and injuring the plaintiff. Held, to support a verdict for the plaintiff, although the jury might have acquitted the defendant on such evidence of any blame.56

§ 624. Automobile on wrong side, continuing near horse. The defendant "was a man 63 years old, and quite inexperienced in the handling of cars. He was driving on the left or wrong side of the road. He saw the plaintiff approaching with her team. His speed was not excessive, but the evident cause of the accident was his failure to seasonably turn from the left to the right side of the road. He continued on his course until within too short a distance of the horse,

55 Shelton v. Hunter, 162 Ky. 531, 172 S. W. 950 (1915).

56 Pfeiffer v. Radke, 142 Wis. 512, 125 N. W. 934 (1910).

within 15 or 20 feet as the plaintiff claims, or 40 or 50 feet as the defendant admits, a space covered according to either contention in from one to three seconds, even if he were traveling at only 10 miles an hour. He ran directly toward the horse, and so close that the horse was naturally frightened and whirled quickly to the left."

The plaintiff "was on the right side of the road. She was familiar with the horse, which was 10 years old, gentle, and not ordinarily afraid of automobiles. The horse was walking. She was driving on a loose rein, but that was the usual manner of handling this horse. There was no indication of fright until the close proximity of the machine.'

It was held that the jury properly found the plaintiff free from contributory negligence, and a verdict in her favor was sustained.57

§ 625. Automobile on wrong side-Curtains flapping. The plaintiff was going south on a street with a wagonload of household furniture. The auto van of the defendant came from the east on an intersecting street and turned towards the plaintiff from the south and at first was on the westerly side of the street on which the plaintiff was driving. The auto van had curtains which were flapping and making some noise. The plaintiff's team became frightened and ran away and the plaintiff's furniture was damaged. It was held that the evidence justified a finding for the plaintiff.58

§ 626. Stopping close to team. Where a motorist overtook and passed a horse-drawn vehicle and saw that the horse had become frightened at his machine, whether or not he was negligent in stopping about 30 feet in front of the horse, which became more frightened and ran against a telephone pole, injuring itself, was a question for the jury. "The natural effect of stopping the thing which had frightened it but a short distance away was to furnish an obstacle to his progress which it naturally would attempt to avoid, and this might have been found to have turned the horse from its course, and therefore to have contributed to its injury." 59

§627. Sudden appearance of automobile without warning. The plaintiff and her daughter were driving a spirited, but gentle, horse to a buggy, and as they approached an intersecting street, an automobile dashed suddenly and without warning around the corner, moving at a high rate of speed toward the horse, which turned about, and ran away, injuring the occupants of the buggy. There was evidence that the speed of the automobile was high and dangerous; that the operator was not looking ahead; that in making the turn the car was headed directly toward the horse; that the plaintiff's view of the car was obscured until it reached the corner. Held, that the evidence justified a finding of negligence on the part of the automobile operator.60

57 Hobbs v. Preston, 115 Me. 553, 98 Atl. 757 (1916).

58 La Brash v. Wall, 134 Minn. 130, 158 N. W. 723 (1916).

59 Delfs v. Dunshee, 143 Ia. 381, 122 N. W. 236 (1909).

60 Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351 (1911).