
    Farmer v. The Findlay Street Railway Company.
    
      Corporation liability — For personal injury — Repair of street railway tracks — Law of negligence.
    
    Although one driving a team of horses upon a public street has knowledge that a street railway company has negligently removed the pavement from its tracks and conducting wires, he is not to be charged with negligence if he drives upon the exposed track and wire, not voluntarily, but because his horses are partially beyond his control.
    (Decided March 14, 1899.)
    Error to the Circuit Court of Hancock county.
    Farmer brought suit in the court of common pleas to recover for injuries to his horse caused by the negligence of the company in removing a brick pavement and leaving the street for a long time in an unsafe and dangerous condition by reason of the exposure of its tracks and conducting wires. The answer denied the negligence of the company and alleged that the horse was injured by reason of the negligence of the plaintiff himself. The plaintiff replied denying the plaintiff’s negligence. On the trial plaintiff introduced evidence of a substantial character tending to show that the company intending to make repairs tore up the pavement within and along its tracks piling the bricks along the sidewalk, and leaving the tracks and conducting wires open and exposed for a time much longer than that required for the making of the repairs. That there was an. unobstructed way on either side of the tracks between it and the curb of not less than twenty-five feet. That the plaintiff with a knowledge of the condition of the street attempted to drive his team of two horses along the portion of the street so unobstructed and between the track and the curb, and while so driving the horses became excited and partially beyond plaintiff’s control and got upon the track one of them having its foot caught and held by a conducting wire whereby it was seriously injured. At the conclusion of the plaintiff’s evidence the court on motion of counsel for the company directed the jury to return a verdict for the defendant. A judgment was rendered upon the verdict so returned and the plaintiff’s motion for a new trial was overruled. This judgment was affirmed by the circuit court.
    
      Jason Blackford & Byal, for plaintiff in error.
    I. The Street Railway Company was clearly negligent in removing the paving in December and leaving it open between tracks until April 1st. It is a duty imposed by law that in the construction or repairs of their tracks they must restore the street without unreasonable delay, so as to be fit for ordinary travel and traffic. It was moreover wholly unnecessary for them to leave this wire that caused the breaking of the horse’s leg to be exposed at all, for any time. Worster v. The 42d St. R. Co., 50 N. Y., 203; Wasmer v. The R. R. Co., 80 N. Y., 212; Sheldon v. W. U. T. Co., 52 Hun., 591; Weiser v. Broadway, etc., 10 C. C., 14; 6 Cir. Dec., 215; Lawrence v. Pendleton St. R. R. Co., 1 C. S. C. R., 180; Bowen v. Detroit, 20 N. W., 559.
    II. There was no contributory negligence shown by the cross-examination of the plaintiff’s witnesses. The claim made by the defendant was that the plaintiff knew the condition of the street at the time his horses got into this place when the paving had been removed, and that it was daylight and he ought to have kept out of it. The court said that if the horses were under the control of the driver he should have kept them out of this place, and if they were not under control, the plaintiff was negligent and caused his own injury. On this reasoning the court instructed the jury that the plaintiff could not recover.
    In this three errors at least occur:
    ' First — The jury should be permitted to say whether there was any negligence on the part of the plaintiff contributing to his injury.
    
      Second — The evidence did not show that the horses were not under the control of plaintiff; and
    
      Third — It would not be proof of negligence on the part of the plaintiff if the horses were not under his full control at the immediate time. Blair v. The P. & L. E. R. R. Co., 37 Bull., 59. Robinson v. Grey, 28 Ohio St., 241; B. & O. R. R. Co. v. Whitacre, 35 Ohio St., 627; L. S. R. R. v. Fitzpatrick, 31 Ohio St., 479.
    What was the negligence of which the plaintiff' was guilty? Not in the hitching up of the horses, for they were properly hitched. Not in driving dangerous horses, for these were well broken. Not in voluntary driving into this broken up street, for he did the best he could to keep out of it.
    Plaintiff did nothing at all to bring about this accident, and did all he could to prevent it. If the street railway company had closed up this paving within any reasonable time after it was opened in December, or had even kept this small wire safely covered, the horse would not have been injured. 
      C. C. & C. R. R. v. Elliott, 4 Ohio St., 474; Hogg v. Zanesville, 4 Ohio, 410; R. R. Co. v. Shultz, 43 Ohio St., 270; R. R. Co. v. Staley, 41 Ohio St., 118.
    It would be the same if the horses had been actually running away, unless the defendant should show that they were a vicious pair of horses, or were unbroken, or had been left standing carelessly, or some other negligence of like character. Thomas on Neg., 1180; Brown v. Collins, 53 N. H., 442; Smith v. Smith, 2 Pick., 621; Murdock v. Warwick, 4 Gray, 178; Baltimore & C. R. Co. v. Cassell, 66 Md., 419; Bell v. N. Y. C. & H. R. R. Co., 29 Hun., 561; Laughlin v. St. Ry. Co., 28 N. E., 873; Wallace v. Detroit, 58 Mich., 231; Bowen v. Detroit, 54 Mich., 496; R. R. Co. v. Cunningham, 39 Ohio St., 327; Kelley & Sons v. Howell, 41 Ohio St., 438; Stockstill v. R. R. Co., 24 Ohio St., 83.
    
      J. A. <& E. V. Bope, for defendant in error.
    It is not contended or claimed that the defendant company in any manner directly contributed to the injury. If there was any fault whatever upon the part of the company it was in not having its men at work placing back the brick between the rails; but the testimony tends to show that the weather was extremely cold, with falling weather and the men could not work; that they had commenced the relaying of their track about two miles north of where the accident occurred and were working southward. Whether the railway company was engaged in this work, or whether it was being done by some contractor — whether it was done by the city of Findlay, the evidence does not disclose.
    But we respectfully submit and claim that under no possible view of the case can it be said or held that this condition of the track was proximate the cause of the injury, or that the injury was proximately produced by any act of the company.
    Negligence is the gist of the action, and if there is no actionable negligence, the plaintiff, of course cannot recover.
    The mere fact of an injury or accident does not raise a presumption of negligence. Like any other fact or issue it must be affirmatively proved. If there was any negligence at all it was upon the part of the plaintiff in his careless or negligent driving, or in the manner in which he had his horse hitched to the carriage by which he failed to keep his team upon the thirty feet of unobstructed paved highway, or by which the horse was permitted or caused to become unmanageable, plunging over upon the track of the defendant compauy.
    By what process of reasoning can it be said that the company by any act whatever contributed to or caused the injury to the horse? Or by what process of reasoning or upon what authorities can it be claimed that the act of the company in repairing its track was the proximate cause of the injury? The Railway Co. v. Krouse, 30 Ohio St., 223; Ry. v. Kasson, 49 Ohio St., 230; Sherman & Redfield on Negligence, 4th ed. section 61, 96, 99; The Wabash, St. L. & Pacific Ry. Co. v. Lock, 2 Am. State Rep., 193; The Coal Co. v. Estievenard, 53 Ohio St., 44; The Cincinnati St. Ry. Co. v. Murray, 53 Ohio St., 571; Thomas on Negligence, 379; Whitaker’s Ohio Code of Evidence, 425 Titus v. Lewis, 33 Ohio St., 304.
   By the Court.

The instruction assumed that the plaintiff having full control of his horses voluntarily drove into the danger of which he had knowledge, and from which the injury to the horse resulted. There was, however, evidence of a substantial character tending to show that he did not have full control of his team and did not voluntarily drive upon the exposed track and wire. Whether he did or not should, upon the evidence, have been submitted to the jury.

Judgment of the evrcuit court and court of common pleas reversed.  