
    Marco Ferinac, Appellant, v. Italian Importing Company et al., Appellees.
    1 PRINCIPAL AND AGENT: Negligence. One may not be held liable for the results attending the negligent act of another when, at the time of such acts, such negligent person was acting solely for a third party, even though, at times prior thereto, such negligent person had acted for the one sought to be held liable.
    2 NEGLIGENCE: Unhitched. Horse. Evidence reviewed, and held sufficient to present a jury question on- the issue of negligence in leaving a horse unhitched in a private yard adjacent to a public street.
    
      Appeal from Polh District Gowrt. — William McHenry, Judge.
    June 24, 1918.
    Action for personal injuries sustained by a minor. At the close of plaintiff’s evidence, there was a directed verdict for the defendant, and the plaintiff appeals.
    
    Affirmed in part and reversed in part.
    
    
      Jas. A. Merritt, for appellant.
    
      Miller & Wallingford and Pao-her, Parrish & Miller, for appellees.
   Evans, J.

The plaintiff, a child three years of age, was injured in a collision with a horse and wagon which were not in charge óf a driver. The petition alleged that the horse and ■wagon were the joint property of the defendants and that the injury to the plaintiff re-suited from the negligente of a servant of the defendants. The particular negligence specified was that one Santo, the alleged servant, had gone to the home of the plaintiff, upon business of both of the defendants’,-, that the residence of plaintiff’s parents was situated within a fenced enclosure, or yard; that Santo passed through the gate, and failed to close the same; that he left his horse standing near the gate without hitching the same; that the plaintiff child passed through the open gate into the street; and that the unhitched horse started on a trot down the street, running over the child in its course. The motion for a directed verdict was sustained, on the ground that there was no evidence that Santo left the gate open; that there was no evidence that he left his horse unhitched; nor any evidence that it would have been negligent to leave the horse unhitched; and that, as to the defendant the Italian Importing Company, there was no evidence that Santo was the servant of such defendant. The injury happened in the early afternoon. There was a wedding party at the house at the time. Some of the guests were present and others were arriving. There were “kids outside.” Whether the “kids” were guests or whether they were there for ulterior purposes does not appear. Some refreshments in the form of beer and whisky had been purchased by the groom for use at the wedding dinner. The errand of Santo was to collect the bill for the refreshments. The Italian Importing- Company was engaged in the grocery business. The defendant Dapolonia was the president of that company. He was engaged on his own account in the liquor business. He sold the refreshments to the groom. The evidence is undisputed that the horse and wagon belonged to him and that Santo was his servant. It appears, also, that Santo made deliveries, at the direction of his employer, at various times for the Italian Importing Company. His business at the home of the plaintiff, however, was exclusively that of his employer Dapolonia. So far, therefore, as the defendant Italian Importing Company is concerned, the verdict was properly directed, on the ground that Santo was not its servant, and was not engaged upon its business at the time of the alleged negligence.

It remains to consider whether there was any evidence from which a jury could find negligence on the part of Santo.. There Avas no direct evidence that he left the gate open. All that appears from the evidence at this point is that Santo necessarily came through the gate, and that it was open thereafter, and that the child passed through it to the street. Under the evidence, the jury would not be justified in finding that he was the only one that passed through the gate, or that he was the only one that could have left it open. Guests were arriving about the same time that he arrived. The “kids” were present in close proximity thereto. If, therefore, it Avere vital to the plaintiff’s case to show that Santo left the gate open, we should have to hold that he had failed. But Ave do not think it was vital to his case. It may well be doubted whether a leaving of the gate open could be deemed as negligence unless it were made to appear that Santo knew of the presence of the child, or knew that he increased its peril thereby. The real pivot of plaintiff’s case turns upon the question of whether the horse was left by Santo unhitched; and Avhetber, under all the circumstances, it was negligent in him so to do. The evidence shows that, in a very few moments after Santo came into the house, the horse went trotting down the street. The witnesses who stopped him discovered no evidence of his having been hitched. There did not appear to be any hitching strap, broken or otherwise. We think the facts thus shown were sufficient to justify a finding of fact by the jury that the horse was left unhitched. If such fact were found, it would then be a fair question for the jury whether, considering all the surrounding circumstances, as well as the character of the horse, it was negligence to leave him unhitched. A horse drawing a vehicle upon the street without control carries some presumption of fact against his absent did ver. ’ We think that the question whether Santo did leave the horse unhitched, and whether it was negligence to so leave him, under all the circumstances, were proper questions for the jury. Migliaccio v. Smith Fuel Co., 151 Iowa 705; Ash v. Century Lbr. Co., 153 Iowa 523.

As to the Italian Importing Company, the order of the trial court will be affirmed. As to the defendant Dapolonia,it will be reversed. — Affirmed in part and reversed in part.

Preston, C. J., Ladd and Salinger, JJ., concur.  