Marshall Traction Co. v. Young ( 1915 )

We do not agree with appellant that the verdict was without support in the testimony. On the contrary, we think (and find) it warranted the conclusion reached by the jury that appellee, without fault on his part, was injured as the result of negligence on the part of the motorman, as charged. The jury had a right to believe that appellee told the truth when he testified that his horse was uncontrollable, and therefore that he was not to blame because he did not get the horse away from the car as it approached. They had a right to conclude, from the testimony set out in the statement above, that the motorman saw the horse, and discovered that he was not manageable, when the car was at least 15 or 20 feet from him, and that the motorman could have stopped the car before it got nearer than 10 or 15 feet to the horse. They had a right to further conclude that, if the motorman had stopped the car as soon as he could after he discovered that the horse was not manageable, injury to appellee would have been avoided, and that a reasonably prudent person operating the car under the circumstances would have so stopped the car, as it was the motorman's duty, when he saw that the horse was frightened and uncontrollable to do what he reasonably could in the management of the car to avoid injury to appellee, the jury, from facts they had a right to find as stated, were warranted in concluding that the motorman had not discharged that duty, and therefore was guilty of negligence. 2 Joyce on Electric Law, § 577; 2 Thomp. on Neg. §§ 1420, 1421; 3 Elliott on Railroads, § 1096; Railway Co. v. Hair, 32 S.W. 1050; Ellis v. Railway Co., 160 Mass. 341, 35 N.E. 1127; Railway Co. v. Page,10 Kan. App. 362, 59 P. 690; Railway Co. v. Hodnett, 101 Va. 361,43 S.E. 606; Railway Co. v. Lowe, 12 Ind. App. 47, 39 N.E. 165; Traction Co. v. Mullins, 111 Tenn. 329, 76 S.W. 890; Parkinson v. Railway Co., 71 N. H. 28, 51 A. 268; McVean v. Railway Co., 138 Mich. 263, 101 N.W. 527; Dabbs v. Railway Co., 8 Ga. App. 350, 69 S.E. 38; Railway Co. v. Thomas,164 Ala. 191, 51 So. 418; Cameron v. Railway Co., 70 N.J. Law, 633, 57 A. 417; Railway Co. v. Cleveland (Ky.) 100 S.W. 283, 11 L.R.A. (N. S.) 853; Railway Co. v. Wall, 142 Ky. 86, 133 S.W. 1145. It was immaterial, we think, whether the horse was struck by the front end or by the side of the car. He would not have been struck at all, but for the negligence of the motorman.

It is insisted that the verdict was excessive, but we do not think we should say it is.

There is no error in the judgment, and it is affirmed.