Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-03-20
COURT DECISIONS.
!! DIGESTEO BY W. B. MARTIN.
IS EXCLUSIVELY FOR
vIRcINiAN-PlLoT.
Notes Of Cases Recently Decided,
Which are Of Interest TO
Our People.
ZIMMERMAN v. WHEELING.

~ OAN1CAsAh<AAN " w 11EIGL44NNf-
Supreme Court of Appeals, West Va.
November II, 1899.
AT IS NOT THE DUTY OF A CITY TO
PROVIDE STREETS SAFE FOR
RUNAWAY OR UNMANAGEABLE
HORSES.
This was an action for injuries
caused by the backing of plaintiffs
horse down an embankment alongside
OF q street in the city of Wheeling.
There was verdict and Judgment for
plaintiff and defendant appealed.
At the time the injury complained of
occurred. the plaintiff, accompanied by
TWO other boys. about Is and IL years
of age. respectively, was riding in an
open buggy, behind horse which the
testimony shows was in the habit of
talkint: and hacking. The horse was
driven by the Ii-yahr-old boy, and they
had just turned into Twenty eighth
street and gone short distance along
the I'll mentioned, when. ms the driver,
testlfes, the horse became frightened
ut the exhaust of an engine stopped,
and. being struck with the whip, began
to back. and became uncomfortable.
After backing fifteen feet, the buggy
and horse went over the embarkment.
This witness says:
II let the horse do as 1t pleased. I
couldn't do anything more, SO 1 tried to
talk to the horse and that didn't do
any good. We went over"
When asked If the horse had got I'M
comfortable. he answered. ITO my
sense. 1t was"
The distance this horse backed is
stated differently by different persons.
III we average these estimates 1t will
make twenty-six feet.
The court says:
The evidence clearly shows that the
ne- 1,t V.kx H. g.
point where the accident occurred, and
that this same driver had repeatedly
driven along the same without acct
dent when there was no railing along
the embankment, and evidently would
nave done so on this occasion but for
the fact that the railway engine ex-
hausted IT'S steam, causing the horse to
back and become unmanageable But
Tor the noise made by the escaping
steam. no accident would have oc-
CURED; and this noise causing the
fright of the horse, taken with the
norses natural disposition to balk and
pack. was the proXimate cause of the
accident. and not the want of a guard
rail. 1t Is true. a rail might have pre-
vented the accident, but no guard rail
would have been necessary IL the horse
had not become uncomfortable. Coun-
sci for the defendant in error rely on
the principles announced by this court
In Rohrbough ". County Court but, in
my view, the case at bar is easily dis
tingulshed from the case.
In the Rohrbough case this court fn
It's opinion. uses the following Ian
guage: From these authorities the
proposition Is deduced that If sufficient
time elapses between the fright of the
horse and the accident to permit the
driver. being u man of ordinary pru-
dence. TO make a proper effort to regain
control of the frigh@ned animal, even
IN CT "a;
not be liable for It's negligence, as the
injury must be attributed to the
vlciousness of the horse rather than
the defect OF the highway. But If no
such time intervenes, and the fright
ana accident are concurrent events.
then the county would\ be liable"
In that case it did not appear that
any time interviewed between the fright
OF the horse and the accident; the
whole matter was an instantaneous oc-
currence. How different in this case.
Here the horse became uncomfortable.
and backed the buggy twenty five feet
TO the edge of the embankment and
over 1t. There was no lack of time for
a prudent man to regain control of the
animal. But for his vicious conduct.
which the evidence shows was habit
ual. and which we must conclude was
the proXimate cause of the accident. IT
would not have occurred
This view is also sustained by the
case of Jackson V. Town OF Bellevieu,
where 1T was held that: "It Is not the
duty of towns to provide roads which
shall be safe for runaway or unman-
ageable horses. or such as have ESCAPED
from control of their drivers without
the fault of the town: and where in
juries are sustained under such circum
stances ii appearing that otherwise
they might not have been sustained.
the loss must fall upon the owners
Reversed.