TURNER v. PAGE

Negligence, In driving, Proximate cause. A driver of horses attached to a tip cart, who leaves them standing near a railroad crossing where a switching engine is shifting back and forth while he goes back to pick up a part of his load which has fallen from the cart, may be found to be negligent if the horses run away and cause injury, although the horses never had run away before and many times had been left unhitched and had been much about railroads and were accustomed to the sights and sounds about trains, and although the driver had no knowledge of any tendency on the part of the horses to run away, and did what it was customary to do under similar circumstances.

One who negligently allows a pair of horses to run away can be found to be none the less liable for injury done by them, or if he is a servant his master to be none the less liable, because before doing the injury the horses swerved from their course when one of them was hit on the head with a rake by a person trying to stop them. Such an intervening act can be found to be a natural and probable consequence of letting the horses run away.

LORING, J.

1. The difficulty with the defendant's argument in support of his exception to the refusal to give the fifth ruling asked for and to so much of the charge as is inconsistent with it is that what is complained of in the argument is not the refusal of what was asked for in the ruling. The complaint made by the defendant in his argument is that the judge did not tell the jury to consider the previous habits of the horses in passing on the question of the driver's negligence. What the defendant asked for in this ruling was that if the jury believed the testimony as to their previous habits the plaintiff could not recover.

2. The difficulty with his argument in support of his exception to the refusal to give the fourth ruling asked for lies in the assumption that the persons who attempt to stop runaway horses will in fact act as the typical prudent man would act. We are of opinion oh the contrary that among the natural and probable consequences of negligently letting a pair of horses run away it is competent to find that they will swerve to one side or the other on account of the acts of persons who try to stop them in a way which would not have been adopted by a prudent man, including waving a rake and hitting one of the horses over the head with it. The case comes within Lane v. Atlantic Works, 111 Mass. 136; Koplan v. Boston Gas Light Co. 177 Mass. 15; Boston Woven Hose Rubber Co. v. Kendall, 178 Mass. 232; Murray v. Boston Ice Co. 180 Mass. 165; see also Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 48 (where the earlier cases are collected); and does not come within Stone v. Boston Albany Railroad, 171 Mass. 536; Glynn v. Central Railroad, 175 Mass. 510; Glassey v. Worcester Consolidated Street Railway, 185 Mass. 315. See also Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49.

Exceptions overruled.