
    (First Circuit—Hamilton Co., O., Cir’t Court
    Jan. Term, 1900.)
    “Before Smith, Swing and Gillen, JJ.
    FLANNAGAN v. HOLLOWAY.
    
      Negligence — Suddenly'starting horse throwing party injured from wagon—
    
    Starting a horse suddenly by calling on him to “get up,” whereby a party is thrown from the wagon is,under the circumstances of the case, not such negligence as will make , the driver liable for the injury.
    
      Error to the Court oí Common Pleas of Hamilton county.
   SWING, J.

We think the judgment of the court of common pleas should be affirmed. The evidence |n 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 Fiannagan and young Holloway were not fellow servants. The only negligence claimed was that young Holloway started the horse while Fiannagan 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 Fiannagan heard Holloway say “get up King”, that he could not have guarded himself 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.  