
    Willis v. Semmes et al.
    [71 South. 865.]
    1. Municipal Corporations. Use of streets. Runaway teams. Presumptions. “Accompany.”
    
    When someone is occupying the vehicle to which runaway horses are hitched, then no presumption of negligence arises from the fact that the horses are running away. But, the contrary rule seems to prevail when a runaway team is accompanied by one in charge of the same.
    2. Runaway Teams. Presumptions. “Accompany.”
    
    In a suit for damages caused by a runaway team in the streets of a city, it cannot be said that the fact that a small hoy who appeared to have been the driver of a runaw.ay team was running upon the sidewalk was in charge of or accompanying the team in such sense as to rebut the presumption of negligence. In order to accompany the team in the sense meant by the authorities upon this subject, the fact should appear that the driver or person was in the wagon or in such position as to show that when the runaway started he was actually in control of the team or had hold of the reins.
    Appeal from tlie circuit court of Lauderdale county.
    Hon. J. L. Buckley, Judge.
    Suit by Mrs. N. N. Willis against John M. Semmes, Jr., and others. From a judgment on peremptory instructions for defendant, plaintiff appeals.
    The facts are fully stated in the opinion of the court.
    
      Fewell é Cameron, for appellant.
    
      Cochran & McCants, for appellees.
   Sykes, J.,

delivered the opinion of the court.

The appellant here, plaintiff in the court below, filed suit in the circuit court of Lauderdale county for damage against the appellees for the sum of ten thousand dollars for. personal injuries alleged to have been sustained by her on or about the 15th day of February!, 1913, in the city of Meridian,

The testimony for the plaintiff in the court below showed that in the early part of the night of the above-mentioned .date the plaintiff, in company with her daughter-in-law, alighted from a West End street car at Fifth ■street and Twenty-Third avenue, and started toward the sidewalk, when some one hollered, “Look out for a runaway horse!” The appellant’s daughter-in-law arrived at the sidewalk in safety, but the appellant, who was an ■old lady of about sixty-nine years. of age, in the confusion of the moment was unable to escape, and was struck •and run over by a runaway horse hitched to a wagon, in which wagon there was no one whatever. The wagon was the delivery wagon of the defendants. It appears from the testimony that while the horse was running away in the street a small boy, who evidently must have been driving the wagon at some period before the horse ran away, was running along on the sidewalk hollering to people to look out for the runaway horse, and apparently was trying to overtake the horse. The plaintiff sustained severe personal injuries which it is unnecessary for us to discuss in this opinion.

After the,introduction of the testimony for the plaintiff, upon a motion by the defendants, the testimony was excluded, and the jury peremptorily instructed to return a verdict for the defendant. This was done, and judgment was rendered thereupon, from which judgment this appeal is prosecuted.

The only question presented to the court for decision is whether or not the proof of the fact that the horse was running away with no driver or no one else in the wagon or on the ground holding the reins was sufficient to make out a prima facie case of negligence against the defendants.- This is the first time that this question has Been presented to this court'for decision. It is a well-known fact that by virtue of their training horses are not in the habit of running away when there is some one in charge ■of the vehicle to which they are harnessed. The weight of authority seems to be that, when some one is occupying the vehicle to which runaway horses are attached, then no presumption of negligence arises from the fact that the horses are running away. But the contrary rule-seems to prevail when a runaway team is unaccompanied by one in charge of the same. This rule is well stated in B. C. L. vol. 1, par. 52, p. 1108, as follows:

“Much has been said as to the presumption of negligence arising from, the mere fact that a horse' ran away, some authorities holding that, in the absence of a suitable explanation, neglect on the part of the owner or driver is fairly inferable from such a circumstance alone, while other courts maintain that from such an occurrence want of care cannot be presumed, but that, as. the burden of proof of negligence rests on the plaintiff, he must show something more clearly and positively negligent in character before he can sustain an action. An analysis of the cases, however, tends to the conclusion, which is apparently supported by the weight of. authority, that negligence is prima facie imputable to the owner when a team is' found running away unattended on a public highway, and damage results to one lawfully thereon, but that no such inference is legitimately deducible where a horse is. running away with his driver. In the former case the maxim res ipsa loquitur is applied; as the common experience of mankind proves that horses which are well broken and kept under control will not, save in exceptional cases, break away from the one in charge of them and inflict injury. Therefore the fact that a horse is running away unattended would seem to afford some evidence that it was not properly cared for, or had been left unfastened or impropertly and negligently secured, none of which inferences can be reasonably drawn as.to a,horse running away with its”driver... But in cases of this character it is well to bear in mind that, whether in the particular jurisdiction the bare fact that a horse ran away is, or is not, sufficient prima facie evidence of negligence, very little in the way of attending circumstances may in any given case he ample to repel or give foundation for the inference.”

In many cases it would be impossible for the plaintiffs to prove the negligence of the defendants unless the doctrine of res ipsa loquitur was applied. Yet it is quite an easy matter for the owner of a runaway team to rebut this testimony by showing that the runaway was not the result of negligence. This testimony is peculiarly within the knowledge of the owner of' the team and his employees. Gorsuch v. Swan, 109 Tenn. 36, 69 S. W. 1113, 97 Am. St. Rep. 836.

It cannot be said that the fact that the small boy who appears to have been the driver of the runaway team was running upon the sidewalk was in charge of or accompanying the team in such sense as to rebut the presumption of negligence. In order to accompany the team in the sense meant by the authorities upon the subject, the fact should appear that the driver or person was in the wagon or in such position as to show that when the runaway started he was actually in control of the team or had hold of the reins.

Reversed amd remanded.  