#### H. GLENN HALL v. PIEDMONT RAILWAY AND ELECTRIC COMPANY.

(Filed 11 November, 1914.)

Street Railways — Trials—Negligence—Evidence—Questions for Jury.

When a judgment of nonsuit is granted upon the evidence, the evidence is viewed on appeal in the light most favorable to the plaintiff; and in this action to recover damages for the death of plaintiff’s horse, wherein there was evidence in plaintiff’s behalf that he was sitting on his horse in a narrow street of a town, when the horse, becoming frightened on the approach of the defendant’s car, ran backward in the direction the car was going, which the motorman must have seen, but failed to stop the car or slacken the speed, which he could have done in time, resulting in the injury, while the plaintiff was doing all he could to control the horse and avoid it. Held,, it was sufficient to be submitted to the jury upon the question of defendant’s actionable negligence. Barnes v. Public-service Corporation, 163 N. C., 363; Doster v. Street Ry., 117 N. C., 661, cited and distinguished.

Appeal by plaintiff from Lyon, J., at March Term, 1914, of Ala-MANCE.

W. II. Carroll for plaintiff.

E. 8. Parleer, Jr., for defendant.

ClaRK, C. J.'

Tbis was an action to recover damages for tbe negligent killing of plaintiff’s borse in October, 1912. On said date tbe plaintiff *285was sitting sideways on bis borse on Front Street in Burlington at 11 o’clock a. m., wben tbe defendant’s car,, going west, frightened tbe borse, wbicb ran backward, on a narrow street in tbe same direction tbe car was going. Tbe owner slipped off, but beld tbe reins. Tbe motorman must bave seen tbe borse backing in tbe direction of bis car, but failed to stop tbe car or to slacken bis speed so as to prevent a collision.

Tbis being a nonsuit, tbe evidence must be taken in tbe light most favorable to tbe plaintiff. Cotton v. R. R., 149 N. C., 227; Shepherd v. R. R., 163 N. C., 521.

Tbe defendant relies upon Barnes v. Public-service Corp., 163 N. C., 363, and Doster v. Street Railway, 117 N. C., 661; but those cases differ very much from tbis. In tbe Barnes case tbe plaintiff, in a buggy, was driving bis borse through tbe street and a boy in tbe buggy was leading a young unbroken colt by a baiter. Tbe motorman and tbe plaintiff saw each other wben about 150 yards apart, but tbe plaintiff continued to drive some 75 yards further, coming towards tbe car, tbe borse and colt becoming more frightened. Tbe owner of tbe horses could bave turned out, after be saw tbe condition of bis animals, info tbe cross-streets, but says be did not do so because be thought be bad as much right on tbe street, as tbe car. Tbe motorman proceeded until tbe car was abreast of tbe buggy,, wben tbe colt jumped upon tbe rear wheels of tbe buggy and upset it, throwing tbe plaintiff to tbe ground and injuring him. There was no collision with tbe car, wbicb was running at its usual speed and making no unusual noise. In that case tbe Court beld that tbe plaintiff was negligent, in that be continued to drive towards tbe car wben be saw that bis team was frightened and wben be- could bave turned out into one of tbe cross-streets.

In Doster v. R. R., cited in tbe last named case, tbe borse was being driven along tbe highway parallel to the railway, and, becoming frightened, rushed upon tbe track ahead of tbe street ear and was injured. Tbe Court beld that in such case tbe street railway company would be responsible for tbe consequences of tbe collision' only wben “by proper watchfulness on tbe part of tbe motorman tbe danger might bave been foreseen and tbe injury prevented by using tbe appliances at bis command.” Tbis was put upon tbe ground that tbe public service should not be interrupted by requiring tbe cars to stop because tbe driver “ventures to test tbe nerve of bis borse or mule by driving it along the street” wben be sees that it is frightened by tbe moving cars, and can turn out or stop bis borse and bold it till tbe car passes.

In tbe present case tbe borse ran backwards towards tbe car, and though tbe motorman saw that its owner was bolding tbe bridle and attempting to prevent tbe borse backing on tbe line, and that unless tbe ear stopped there would likely be a collision, be made no effort to do so, *286and tbe horse was injured by the car striking him. The motorman, who could have seen the horse for 300 feet, did not “use the appliances at his command” and stop the car, so as to prevent the injury. The plaintiff was doing all he could to prevent the collision, but could not. The motorman saw this, and could have prevented it, but did nothing. It may be that if the defendant had put on evidence he might have satisfied the jury of a different state of facts. But upon the evidence the case should have been submitted to the jury. Hines v. R. R., 156 N. C., 222.

In Bulloch v. R. R., 105 N. C., 180, it was held that where the engineer with proper watchfulness should have seen that a wagon was stalled upon the track, it was his duty to use “every means and appliance in his power” to stop the train, and if he does not, the company is liable for his negligence. In Brinkley v. R. R., 126 N. C., 88, the same was held where the horse was running loose on the track and would not get off and there was a cattle-guard or trestle ahead of it which it could not cross.

The subject is interestingly discussed with full citation of authorities by Hohe, J., in Snipes v. Mfg. Co., 152 N. C., 42, in which it was held that if the engineer with proper diligence could have seen a person in front of his engine in such a position that ordinary effort on his part would not likely avail to save him from injury, and that a collision was not improbable, it is negligence if he fails -to use all means at his command, consistent with the safety of the passengers or property in his charge, to prevent the collision or injury. That principle applies with greater force here, where the frightened horse did not have intelligence ■to attempt to avoid the injury and the motorman saw this and that the horse’s owner was vainly endeavoring, with all his power, to prevent the collision.

The verdict of nonsuit must be

Reversed.