Negligence. If a grocer with a horse and delivery wagon, who sometimes uses a weight to hitch his horse, leaves him without a weight or other fastening standing by the side of a street in which he knows that a street car soon is due, and then goes into a house to take orders and remains there ten minutes, and in the meantime the horse wanders across the street and grazes upon some trees with the wagon upon the track of the street railway, and the expected car coming at a high rate of speed destroys the wagon and kills the horse, the grocer cannot recover from the railway company for his loss of property even if its servants were negligent, not being able to sustain the burden of showing that he was in the exercise of due care.
LATHROP, J.
If we assume in favor of the plaintiff that there was some evidence of negligence on the part of the defendant's motorman in not stopping the car sooner than he did, we are of opinion that the plaintiff did not sustain the burden of proof, which was upon him, of showing that he himself was in the exercise of due care, in leaving the horse unfastened in any way for ten minutes by the side of a street when he knew that a car was about due. The plaintiff sometimes used a weight, and it is evident that if one had been used in this case the accident might not have happened. While there was evidence that the horse was kind, easily managed and not afraid of cars, yet the accident was caused not by the horse being frightened, but by his wandering across the street and the track of the defendant, and grazing upon some trees, leaving the wagon upon the track. During the ten minutes while the plaintiff was absent, he remained in a house, during which time he did nothing with reference to the horse, nor did he see the horse.
The case differs from Southworth v. Old Colony Newport Railway, 105 Mass. 342, upon which the plaintiff chiefly relies. In that case the driver was not accustomed to hitch his horse, and was absent only four or five minutes. The street where he left the horse was not one where cars were passing. The railroad crossing was on another street, and from fifty to one hundred rods distant from the place where the horse was left.
We do not intend to decide that momentarily leaving a horse unhitched upon a street, is negligence as a matter of law; but we are of opinion that under the circumstances of the case before us, the instruction requested should have been given.
Exceptions sustained.