#### Charles Meseke, Appellee, v. H. Piper Company, Appellant.

Gen. No. 21,224.

(Not to he reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. George Bedford, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.

Affirmed.

Opinion filed March 15, 1916.

Statement of the Case.

Action by Charles Meseke, plaintiff, against H. Piper Company, defendant to recover damages alleged to have been sustained by plaintiff’s horse and wagon as a result of the running away of the team owned by defendant. From a judgment for plaintiff, defendant appeals.

Plaintiff’s horse was hitched to a wagon and was standing on the north side of Madison street in the village of Forest Park, facing west. The team and wagon belonging to the defendant, in charge of a driver, was delivering bread in said village, and it being about noon, the driver drove the team into a shed, which was in a yard immediately adjoining Madison street. The shed was about forty or fifty feet inside of the yard. *326The yard was inclosed with a fence, there being two entrances to the same. The driver took the bridles off the horses and hung them on the hames, fed his team, and then went into a restaurant, which was situated near the yard, to eat his dinner. About five minutes thereafter, he looked out and the team was gone. In some manner not disclosed by the evidence, the team got out on Madison street and turned east, running away. They ran into plaintiff’s horse and wagon. Plaintiff’s horse was injured and parts of the wagon shafts broken. On account of the injuries the plaintiff was unable to afterwards use the horse. The value of the horse was placed by a witness on behalf of the plaintiff to be from $100 to $125, while a witness testified on behalf of the defendant that the horse was not worth to exceed $50. There was also evidence as to other items of damage incurred.

Abstract of the Decision.

1. Municipal Court of Chicago, § 13a * —what does not constitute variance between statement of claim and proof. In a fourth-class case in the Municipal Court of Chicago for damages caused to plaintiff’s horse and wagon by defendant’s runaway team, where plaintiff’s statement of claim averred that defendant’s team and wagon were left “unattended, unhitched and unguarded,” and the evidence was contended to be in fatal variance therewith in showing only that the team was left unattended and unhitched, such contention held to be without merit.

2. Negligence, § 187*—when evidence sufficient to sustain finding as to negligence in driving team. In an action for damages to plaintiff’s horse and wagon by defendant’s runaway team, evidence *327 held sufficient to sustain a finding as to negligence of the driver of defendant’s team.

*326Thomas C. Angerstein, for appellant.

No appearance for appellee.

*

See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, samp topic and section number,

Mr. Justice O’Connor

delivered the opinion of the court.

*3273. Negligence, § 164a * —when evidence as to gentle disposition of horse inadmissible. Where plaintiff in action for damages caused to his horse and wagon by defendant’s runaway team offered evidence as to the gentle disposition, etc., of his team, such evidence was properly refused, plaintiff not claiming that the horses were other than gentle, but basing his action on the negligence of defendant on the control and management of the team.