
    No. 4582.
    Court of Appeal, Parish of Orleans.
    M. DARDIS CO., LTD., VS. NEW ORLEANS RAILWAY AND LIGHT CO.
    Questions of fact alone are involved herein.
    Appeal from Civil District Court, Division “E.”
    E. IT. McCaleb, for Plaintiff and Appellant.
    Dart & Kernan, for Defendant and Appellee.
   MOORE, J.

This was a suit for damages. The substantial allegations of the petition are:

“That, on the 20th March, 1907, about fifteen minutes to six o’clock p. m., your petitioner’s driver, in charge of a small grocery wagon drawn by a gray horse, belonging to your petitioner, was coming up Dauphine Street at the corner of Orleans Street, when car No. 10 of the Bayou St. John line, belonging to defendant and propelled by electricity, was coming down Dauphine Street, at an excessive rate of speed,, when petitioner’s driver was endeavoring to pull off the car track, ran into the wagon and the horse attached thereto, breaking the shaft, injuring the harness and smashing the foot of the horse attached to the vehicle, so disabling him that he had to be killed by a policeman.”

January 25, 1909.

The answer after tending the general issue specially avers “that the accident was caused solely by the fault, want of care, negligence and incompetency of plaintiff’s driver.”

There was judgment for defendant dismissing plaintiff’s petition and the latter appeals.

The'facts are that defendant’s car was going down town and plaintiff’s wagon was coming up town. The driver of the latter noticing the car approaching, “pulled”. into Orleans Street, wood side, and had completely cleared the track. The motoneer of the car -thus seeing that he had a clear track, proceeded down to Orleans Street at the usual rate of speed, when of a sudden and without any apparent cause defendant’s horse became unmanagable, reared and turned and plunged in front of the car, and before it was possible to stop the car, and avert a collision, the horse was struck and the wagon injured. The evidence is conclusive that the accident was in no manner occasioned by the fault of the defendant’s agents, servants or employes, and that, on the contrary, it' was the result of the sudden and unexpected behavior of the plaintiff’s horse for which the defendant is not responsible and did not contribute to bring about.

The judgment is affirmed.  