
    Charles F. Spargo vs. West End Street Railway Company.
    Suffolk.
    December 8, 1899.
    January 4, 1900.
    Present: Holmes, C. J., Knowlton, Barker, Hammond, & Loring, JJ.
    
      Personal Injuries — Negligence — Evidence as to Speed of Horse.
    
    In an action for personal injuries against a street railway company, it appeared that when the plaintiff, who was driving, was overtaken by the defendant’s car which was going in the same direction, the horse took fright and dashed the wagon against a tree and the plaintiff was thrown to the ground. The plaintiff, who contended that the car was running at an excessive rate of speed, and that the motorman, knowing that the horse was frightened, negligently sounded the gong and failed to diminish the speed of the car, offered the evidence of the owner of the horse as to the capacity of speed of the horse to show that the horse was a speedy animal. Held, that the evidence had no tendency to show at what rate of speed the car or even the horse was going at the time of the accident, and that it was rightly rejected.
    Tort, for personal injuries occasioned to the plaintiff on April 20,1897, by being thrown from the wagon on which he was riding. At the trial in the Superior Court, before Blodgett, J., there was. evidence tending to show that the plaintiff, a caterer, was driving a loaded wagon in Boston when he was overtaken by a car of the defendant company, which was going in the same general direction; that his horse took fright, swerved in towards the sidewalk and dashed the wagon against a tree which projected into the street beyond the line of the curbstone, and that the plaintiff was thrown to the ground. The car at the time had reached a point some sixty feet beyond the spot where the plaintiff struck.
    The evidence was contradictory as to whether the horse was galloping, and as to the point where he began to gallop.
    The plaintiff contended that the car was running at an excessive rate of speed and that the motorman, knowing that the horse was frightened, negligently sounded the gong and failed to diminish the speed of the car. The plaintiff called one Crane, the owner of the horse, and, for the purpose of showing the probable rate of speed of both the horse and car, interrogated him as to the capacity for speed of the horse. The judge rejected the evidence,"and the plaintiff excepted. Had the witness been permitted to answer, he would have testified that the horse was a speedy animal.
    The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.
    
      S. H. Tyng, for the plaintiff, relied principally on Whitney v. Leominster, 136 Mass. 25.
    
      W. B. Farr, (M. F. Dickinson, Jr. with him,) for the defendant.
   Hammond, J.

That the evidence offered had no tendency to show at'what rate of speed the car, or even the horse, was going at the time of the accident is too plain for discussion. It was rightly rejected. Exceptions overruled.  