#### W. N. BARNES v. NORTH CAROLINA PUBLIC-SERVICE CORPORATION.

(Filed 5 November, 1913.)

Street Railways — Operation of Cars — Duty of Traveler — Negligence.

Tbe running of an electric car upon its tracks on a city’s street in tbe usual and customary manner at a moderate speed and without further noise than is necessary is not negligence; and where a traveler in a buggy voluntarily drives in the direction from which it is approaching, is able to safely drive into a side street, and is injured, without coming in contact with the car, because a colt which he was leading,, becoming frightened, overturned the buggy, the injury complained of is the result of his own negligence, and he cannot recover damages therefor. The reason that this rule is not applicable to automobiles (ch. 107, Laws 1913), pointed out by Clark, C. J.

Appeal by plaintiff from Shaw, J., at August Term, 1913, of GrUILFOED.

John A. Barringer for plaintiff.

Taylor •& Scales for defendant.

*364Clark, C. J.

On 31 May, 1912, tbe plaintiff in a buggy was driving a horse on Church Street in Greensboro. Riding with him was a boy, leading a young unbroken colt in the rear' of the buggy by a halter. The street car of the defendant was on its regular run on said street. When the car had reached a point about 75 yards south of the intersection of North Davie Street with said Church Street the motorman on the car and the plaintiff saw each other, they being then about 150 yards apart. The plaintiff drove on, he says, about 75 yards further towards the car, the horse and colt showing signs of fright at the approaching car and becoming more frightened as it drew nearer. The motorman did not stop the car, or slacken speed, and when the car came abreast of the buggy, the colt jumped upon one of the rear wheels of the buggy and upset it, throwing the plaintiff to the ground, whereby he was injured. There was no collision of any kind. There was nothing unusual about-the car, which was running at the usual rate of speed and making no noise except that necessarily incident to the operation of street cars.

The plaintiff testified 'that after the horses became frightened, he continued to drive towards the car, and even started to drive across the track directly in front of it. He further testified that the colt was unbroken and skittish, and that he would have known it would be frightened by the car if he had thought about it ; that there were cross streets near where the accident happened which he could have turned into after his team became frightened, but did not do so because he thought he had as much right on Church Street as defendant’s car.

Upon this evidence his. Honor properly allowed the motion to nonsuit. It appears from the plaintiff’s own evidence that he was not injured by reason of any negligence on the part of the defendant’s motorman, but by reason of his horses becoming frightened by a street car operated in the usual method. It is true that he had as much right <?n the street as the car, but the car had as much right as he did. It was serving the public in the usual and ordinary manner and without any unnecessary noise. The plaintiff should not have driven further in the direction of the car after he saw that his team was *365frightened, when be could have turned out in tbe by-street. Tbe injury was caused by bis own want of care and not by any want of care on tbe part of tbe defendant.

In Doster v. Street R. R., 117 N. C., 661, tbe Court said: “Where a horse is being driven, or is running uncontrolled, along a highway parallel to a railway of any kind, though it gives unmistakable evidence by its movements that-it is alarmed at an approaching train or car, the engineer or motorman in charge is not negligent in failing to diminish the speed in the absence of a collision.” The Court further said: “The plaintiff voluntarily exposed himself, his buggy and his mule to the risk of any accident which might be cahsed by the animal taking fright at the usual noise incident to running a street car by electricity, there being no testimony tending to show that the motorman wantonly or maliciously made unnecessary noises for the purpose 'of scaring the animal.’’

There is no suggestion in the complaint, or the testimony, that the motorman in this case wantonly or maliciously ran the car to where the plaintiff was. ' In the Doster case the plaintiff waved the motorman to stop the ear, and called to him to do so, and finally got out of his buggy and held the bridle of his horse. In the present case the plaintiff made no motion of any kind nor gave any signal for the car to stop, but drove on towards the ear.

The rule laid down in Doster v. Street R. R., supra, that a street railway company is not liable for an injury resulting from horses being frightened by the noises or appearance of the car when operated in the usual manner, has been cited and approved. Everett v. R. R., 121 N. C., 520; Dunn v. R. R., 124 N. C., 257; Moore v. R. R., 128 N. C., 458.

“Eailroad companies running their trains in a lawful and usual manner are not responsible for damages occurring to 'travelers along the road in consequence of their team taking fright at the noises ordinarily made by the' operation of such trains.” 2 Thompson Neg., par. 1908; 2 Shearman and Bedfield Neg. (6 Ed.), sec. 485; Morgan v. R. R., 98 N. C., 247 ; 36 Cyc., 1487, 1488, 490; Clark on Street R. R. (2 Ed.), 114.

The reason of the rule is thus stated in Doster v. Street R. R., 117 N. C., 663: “People who pay their money in the *366expectation of being earned, expeditiously are not to be delayed by every person wbo ventures to test tbe nerve of bis borse or mule by driving it along tbe same street on wbicb a company runs its street cars by electricity. When persons subject themselves to sucb risk, and no collision with, tbe moving car- ensues, tbe injury caused by tbe conduct of frightened animals is deemed in law to be due directly to their own want of care.”

A condition might occur in wbicb a street car should bait for a moment, as if, for instance, if it should suddenly come around a corner, frightening a borse, and tbe motorman can see that by baiting a moment tbe driver may be given an opportunity to turn around and drive off in safety. In this and other conceivable cases it would be negligent for tbe motorman not to stop bis car a brief period to give the driver of tbe conveyance an opportunity to save himself. But nothing of this kind occurred in this case.

Tbe plaintiff testified that be was 150 yards from tbe car when be first saw it, and after seeing it be continued to drive towards it a distance of 75 yards before tbe accident occurred. Both car and plaintiff were traveling towards tbe point where North Davie Street crosses Church Street. Tbe plaintiff should not have expected that the car should stop and wait till be might get to Davie Street and turn down it. He should- have given, way for tbe ear, for be knew that bis animals were frightened. He could have turned back or could have turned down a side street. Tbe ear could not have done this. Nor, as it was engaged in a service for tbe public, should tbe plaintiff have expected that tbe car should stop when be bad ample opportunity to do so himself and avoid tbe injury. Tbe proximate cause of bis injury was bis own conduct. Strickland v. R. R., 150 N. C., 4.

We need not consider tbe evidence as to tbe nature of tbe plaintiff’s injuries, wbicb were serious. There was certainly dam/nmn., but not injuria. Tbe plaintiff was not injured by a collision with tbe defendant’s car, but by tbe colt overturning bis buggy and throwing him out. Tbe colt was frightened when tbe defendant’s car was where it bad a right to be, in tbe public service, and was being operated in tbe usual manner. *367Tbe colt was frightened because tbe plaintiff did not cboose to turn, down one of tbe by-streets, but drove on probably 75 yards towards tbe ear, wbicb was frightening bis team more and more as be approached it. The car was not running unusually fast. Indeed, it appears that tbe plaintiff was going at tbe same speed, as each moved 75 yards after tbe plaintiff and motorman saw each other.

There is a wide distinction in many respects between a street car and an automobile. Tbe street car is engaged in a public service and running regular schedules, which it owes a duty to tbe public to observe. It is running on a regular track, and cannot turn out, nor can it stop without losing its schedule. Tbe noises it makes are not so likely to frighten teams as an automobile, and tbe streets on wbicb tbe street ears are to be found are well known to drivers, who can avoid them; whereas an automobile may be met with anywhere and unexpectedly. • A street car runs slower and makes frequent stops. For these and other reasons tbe statute has prescribed the speed limit of automobiles and the'duties of chauffeurs on meeting people whose teams are frightened. Chapter 107, Laws 1913.

The judgment of nonsuit is

Affirmed.