#### Weikel *v.*Pullman Taxicab Company, Appellant.

*Negligence*— Automobiles—Rear *end collision between taxicab and wagon*— Absence *of driver from wagon*— Contributory *negligence*— Case *for jury.*

In a suit against the owner of a taxicab to recover damages for injuries to a wagon, the ease is for the jury where the evidence tends to show that the taxicab was driven at night along a well-lighted street, and without turning either to the right or left ran straight into the rear *596of the wagon which had a light at the back. In such a case the plaintiff’s right to recover is not defeated by the fact that the driver had left the wagon to deliver milk to his customers, and the horse was proceeding slowly along the street in the car track.

Submitted Dec. 1, 1914.

Appeal, No. 122, Oct. T., 1914, by defendant, from judgment of Municipal Ct., Phila. Co., on verdict for plaintiff in case of Jacob G. G. Weikel and Abraham Weikel, Copartners trading as Weikel Brothers, v. Pullman Taxicab Company.

Before Rice, P. J., Orlaby, Heab, Kephart and Trexler, JJ.

Affirmed.

Trespass to recover damages for injuries to a wagon. Before Gilpin, J.

At the trial it appeared that about four o’clock in the morning of January 10, 1914, plaintiff’s milk wagon was run into by a taxicab and damaged. The facts relating to the accident are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff for $235.12. Defendant appealed.

*Error assigned*was in refusing binding instructions for defendant.

*Edgar J. Pershing*for appellant.

Defendant was not negligent: Baker v. Fehr, 97 Pa. 70; Catawissa R. R. Co. v. Armstrong, 52 Pa. 282; Philadelphia & Reading R. R. Co. v. Yerger, 73 Pa. 121; Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610.

It has been held that where a horse is loose upon the street and unattended by anyone attempting to control it, there is a presumption of negligence rebuttable only by showing all the circumstances under which the escape occurred: Unger v. Forty-Second St., etc., R. R. Co., 51 N. Y. 497; Henry v. Klopfer, 147 Pa. 178; Stevenson v. U. S. Express Co., 221 Pa. 59; Dunkle v. *597City Pass. Ry. Co., 209 Pa. 125; Davis v. Kallfelz, 22 Misc. (N. Y.) 602; Dougherty v. Sweetzer, 82 Hun, N. Y. 556; Goodman v. Gay, 15 Pa. 188; Miller v. Cohen, 178 Pa. 488.

May 14, 1915:

*Frank Rogers Donahue,*for appellees.

Opinion bt

Trexler, J.,

The employee of the defendant company while operating one of its taxicabs drove into the rear of plaintiff’s milk wagon. The plaintiff had left the team and was delivering milk to his customers, and the horse was proceeding slowly down the street in the car tracks. The driver of the taxicab alleges that as he was about to pass the wagon he saw the horse turning to the right. He then attempted to cross on the left when the horse turned in that direction. The horse as he claims then stopped and in some way the collision occurred. It is admitted that the milk wagon during this time never left the car tracks. The accident occurred at four o’clock in the morning but there was evidence that the place of the accident was well lighted, and that there was a light in the back of the milk wagon. The plaintiff’s story is that the taxicab came down the street and turning neither to the right nor left ran straight into the rear of his wagon. Certainly with such testimony the decision of the case was for the jury. If the plaintiff’s narration is true the driver of the taxicab was plainly negligent.

The principal defense is that the owner of the milk wagon having left his team without a driver was guilty of contributory negligence. It is true that the owner of a horse is prima facie guilty of negligence if he leaves him unhitched and unattended in a public street. He takes the risk as to what the horse may do, and it puts upon the party doing it the burden of showing circumstances which justified or excused it. How strong the presumption is depends on the circumstances. It is *598therefore a matter for the jury: Stevenson v. United States Express Company, 221 Pa. 59.

This does not mean that the owner of an unhitched and unattended horse may under no circumstances recover for injuries negligently done to it or the vehicle with its contents drawn by such horse. The lack of attention given to the horse must contribute to the accident in order to defeat recovery by the owner of the horse. In the case we are considering, the jury could readily come to the conclusion that the fact that the horse was without a driver in no way affected the question of defendant’s negligence, and that the collision occurred solely through the negligence of the driver of the taxicab.

Judgment affirmed.