Quicksall v. Abbotts Alderney Dairies

Opinion by Linn, J., Plaintiff, a passenger in a street-car in Philadelphia, was injured by appellant’s runaway horse, which dashed against the side of the car breaking the window beside the seat occupied by plaintiff. Defendant offered no evidence but moved for binding instructions ; the motion was refused and this appeal followed. The motorman testified that his car was moving south on 19th street, and as it was crossing Snyder Avenue, “I just saw a runaway horse, no wagon attached, only the front wheels and the fifth wheel...... this runaway horse, no driver with it, was traveling at a terrific rate of speed......” There is no evidence describing how the horse got away from its driver, nothing to indicate whether it had been left unhitched or unattended, or that it was vicious or unroadworthy in any respect whatever. Is the accident itself evidence of defendant’s negligence in the care of the horse? The view of the learned court below appears in the instructions that the jury “may infer from the fact that the horse was running away, unattended, with the shafts and two wheels of the wagon attached to it, [that] the owner of the horse was guilty of negligence.” We are constrained to differ from that conclusion. Negligence must be shown. The owner of a horse is not an insurer against accident: Barshay v. Ice Co., 84 Pa. Superior Ct. 538. The mere fact that a horse runs away does not of itself establish negligence, but if it be also shown that a runaway horse had been left *422 unhitched and unattended on a city street, the fact that he was so left is prima facie evidence of negligence and from that fact the jury may find that defendant was negligent: Jordan v. Eisele, 273 Pa. 95, 97. As “the horse was running away” — and the record will not permit a finding that this was other than a runaway horse — there must be evidence from which it may be inferred-that the owner was negligent in so caring for the horse that he was suffered to run away. The record is destitute of any evidence save that the horse, in the condition described by the motorman, dashed into the street car. There is nothing to indicate that the owner had done or omitted to do anything that resulted in the runaway. Had he left the horse unhitched and unattended? Was the runaway caused by any misconduct of a servant for which the owner might be held? Without evidence that the runaway was caused by some omission of proper care in the circumstances, the fact that the horse ran away is insufficient: Jordan v. Eisele, supra; Erickson v. Sutherland, 69 Pa. Super. Ct. 516. The judgment is reversed and here entered for defendant.