
    NEGLIGENCE.
    [Hamilton Circuit Court,
    January Term, 1900.]
    Smith, Swing and Giffen, JJ.
    Flannagan v. Holloway.
    Suddenly Starting Horse — Occupant Thrown from Wagon.
    Starting a horse suddenly while another occupant of the wagon had his face to the rear of the wagon, is not such negligence as will render the driver liable, where it appears that the person thrown from the wagon heard the driver calí to the horse to “ get up,” and it does not appear that such person might not have guarded himself against falling off, and that the falling off was the probable or necessary result of starting the horse.
    Heard on Error.
   Swing, J.

We tbink the judgment of the court of common pleas should be affirmed. The evidence in our opinion does not tend to show any negligence on the part of the defendant, and there was nothing to go to the jury, and thus conceding that Flannagan and young Holloway were not fellow servants. The only negligence claimed was that young Holloway started the horse while Flannagan had his face turned to the rear of the wagon, and the wagon starting suddenly, plaintiff said he heard Holloway say “ get up King,” so that he must have been aware of what the horse was going to do. It did not appear from the evidence that it was negligence to start the horse while plaintiff’s face was to the rear, and it did not appear from the evidence that after Flannagan heard Holloway say “ get up King,” that he could not have guarded himselt against falling off if he had desired to do so, and that the falling off was the probable or necessary result of starting the horse while Flannagan's face was to the rear. The evidence fell short of tending to prove the claim of negligence.  