Koyse v. Randle

Tkuly, J., delivered the opinion of the court. We are loath to disturb the finding of a jury upon an issue of fact, but in this case the testimony of appellee, when considered in the light of attendant circumstances, is not sufficient to sustain the verdict. There is an absolute failure to prove, by any evidence more weighty than the bare statement of an unsupported opinion, any negligence on the part of the driver of the wagon, who was the employe of appellant. This driver testified that he did not know of the approach of Randle until the happening of the accident, and the physical facts corroborate this statement. It is not necessary for us, upon the record here, to enter into any discussion “of the law of the road,” or the relative rights and duties of drivers of vehicles and travelers on horseback. The driver being guilty of no negligence causing the injury, his master cannot be mulcted in damages. Take the scene of the occurrence: A public street, over eighty feet wide; a driver, with his attention entirely engrossed in driving a pair of mules hitched to a heavily loaded wagon, intent on turning his wagon for the purpose of making another effort to cross a steep bridge over the curbing, in order to .deliver his load; he and his team facing soüthwest, the wagon turning toward the west and to the ¡north; the appellee and his companions riding from the east to [171] tbe rear, or on tíre right side of the driver; they riding horseback, he driving a wagon; they riding in a trot, he driving in a walk; they in plain view of the wagon and team, he ignorant of their approach. With full knowledge of tke situation, appellee, with the entire street to choose a passage in, undertook to cross in front of the team, between the team and the bridge over which the driver was trying to go, and, in so passing, his horse was struck by the sudden plunging of one of the mules, and, becoming frieghtened, threw appellee and ran away, and both man and horse were injured. The slightest .divergence to the souths a momentary checking of the horse, would have carried the rider safely by. Under these circumstances who was to blame for the accident ? Certainly not the driver. Reversed and remanded.