#### REBECCA E. THOMPSON v. NATIONAL EXPRESS COMPANY.

January Term, 1894.

*Negligent driving in highway. Contributory negligence. Evidence. ■*

1. Evidence that while the defendant’s team was collecting express packages the driver sprang upon the wagon and started his horse into a trot along the side of a much frequented street near its junction with another busy street, looking towards the stores on that side, and not observing nor managing his team with reference to the plaintiff, who was thereby struck while crossing the street, tends to show negligence upon the part of the defendant.

2. The accident occurred near the junction of two of the most frequented streets in the city of Rutland, while the plaintiff was attempting to'cross one of those streets. The plaintiff testified that she looked in both directions and neither saw nor heard the team which’ struck her. Held, that the question of contributory negligenee was for the jury.

3. Evidence of pains in other parts of the body than those specified in the declaration as having been injured is admissible, provided such pains are referred to the injuries received as their cause.

Case for personal injuries received through neglect of defendant. Plea, the general issue. Trial by jury at the September term, 1893, Rutland county, Rowell, J., presiding. The defendant moved for a verdict which the court denied. Verdict and judgment for the plaintiff. The defendant excepts.

*359
      *J. C. Baker*for the defendant.

The court should have directed a verdict. The evidence did not tend to show negligence upon the part of the defendant and did show contributory negligence in the plaintiff. *Worthington*v. Railroad, 64 Vt. 107 ; *Latremouille*v. *Railway,*63 Vt. 336; *Stock*v. *Wood,*136 Mass. 353; *Barker*v. *Savage,*45 N. Y. 191; *Belton*v. *Baxter,*54 N. Y. 245 ; *Brooks*v. *Schwerin,*54 N. Y. 343 ; *Stringer*v. *Frost,*116 Ind. 477.

The plaintiff was allowed to show special damages not alleged in the declaration. *Roberts*v. *Graham,*6 Wall. 578 ; *Tomlinson*v. *Derby,*43 Conn. 562 ; *Taylor*v. *Monroe,*43 Conn. 36; *French*v. *Wilkinson,*93 Mich. 322; *Fuller*v. *Jackson,*92 Mich. 197.

*Butler & Moloney*for the plaintiff.

The plaintiff’s evidence tended to show reckless and negligent driving upon the part of the defendant’s servant. *Barber*v. *Essex,*27 Vt. 62; *Vinton*v. *Schwab,*32 Vt. 612; *Durgin*v. *Danville,*47 Vt. 95 ; *Rogers*v. *Swanton,*54 Vt. 592 ; *Fassett*v. *Roxbury,*55 Vt. 552.

ROSS, C. J.

I. There was evidence fending to show that the injury was caused by the negligence of the driver of the team belonging to the defendant when being used in the defendant’s business. The plaintiff and defendant’s team and driver were in the rightful use of one of the most frequented streets of the city of Rutland. The plaintiff was crossing, on foot, Centre street, near its junction with Broadway. The defendant’s team, delivering and collecting packages, was, when the plaintiff started to cross Centre street, standing on the north side of that street, three or four rods above its junction with Broadway. In the use of Centre street both parties were bound to exercise her and its *360right with reasonable prudence and care, so as not to interfere with the exercise, in a reasonably prudent manner, of the right of the other.

The testimony tended to show that while the plaintiff was walking across Centre street the driver of the defendant’s team jumped upon the wagon and started the'horse into a trot down the north side of the street, the driver looking towards the stores along the north side of Centre street to see if they had any express business that needed attending to, and not observing nor managing the team with reference to the plaintiff’s use of the street. While the team was moving in this manner, practically uncontrolled by the driver, it ran against the plaintiff, causing the injury. In these facts, which the evidence tended to establish, there was evidence tending to establish that the injury was caused by the negligence of the defendant’s driver, in his imprudent and careless management of or failure to manage the team.

Whether the plaintiff’s use of the street was careless and negligent, and that carelessness and negligence contributed to the happening of the accident that caused the injury, on the plaintiff’s testimony is not so manifest that no two reasonable minds could or would differ in regard to it. In crossing the street at that point, necessarily, she must have care, with reference to teams coming south on Broadway and turning up Centre street, and to teams coming down Centre street. Her testimony was to the effect that, before starting to cross, and while crossing, she looked in both of these directions, and that the team came upon her while her attention was directed towards Broadway, without being heard or seen by her while it was moving. The point is near the railroad station, where there is usually more or less noise. There were also quite a number of people moving and standing near 'by. Hence it was an open question whether she was in the exercise of reasonable care, and the question of the negligence of the driver and whether the *361plaintiff was guilty of contributory negligence were properly submitted for determination to the jury.

II. An inspection of the record shows that the testimony excepted to by the defendant, relating to pains suffered by the plaintiff in her back and in the back of her neck, was admitted' only as evidence of pains resulting from the injuries specified in the declaration. It was not admitted as evidence of injuries received at those points, and not set out in the declaration. Thus limited, there was no error in receiving this testimony.

*^Judgment affirmed.*