Plaintiff's testate was killed on Van Ness Avenue, San Francisco, having been struck by a wagon drawn by a runaway horse belonging to defendant Nelson, and this action was to recover damages for the death. At the close of the evidence for plaintiff, the court granted a motion for non-suit. The appeal is from the judgment and from the order denying plaintiff's motion for a new trial.
The driver of the horse was not called by plaintiff as a witness, and there was no evidence as to what caused the horse to run away. The witnesses Taggard and Wilson testified that their attention was attracted by some one crying "Whoa, whoa," and on looking in the direction of the cry they saw the wagon coming. Witness Taggard testified: "The driver was in the air, and he sat down on the ground, and the horse ran away, and the man jumped up and ran after him. The horse was going towards Van Ness Avenue, and the driver fell off, or got off, about right opposite the door of the armory on Ellis Street." This witness further testified: "The driver was in the air when I saw him, between the seat and the ground. He was off the seat. . . . The horse was not going very fast then. The driver ran after the horse. The horse then ran; by that time the reins were dangling around the horse's feet. The horse then ran so fast that I did not want to try to stop him." The horse went up Willow Avenue to Van Ness Avenue, where he turned down towards Market Street. He ran into a crowd of men who were working on Van Ness Avenue, and collided with deceased, who was so severely hurt that he died shortly after receiving the injury. It is conceded that there was no contributory negligence on the part of deceased.
Appellant contends that she made out a prima facie case against the defendant Nelson, under whose management and control the horse had been driven by his driver, Baumert, prior to the accident. Numerous cases are cited in support of the rule laid down in Judson v. Giant Powder Co., 107 Cal. 556, namely: "When a thing which causes the injury is shown to be under the management of the defendant, and *Page 575 the accident is such as in the ordinary course of things does not happen if those who have the management use the proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." In short, it is here contended that the presumption of negligence arose from the fact that the horse ran away, and that the burden is therefore cast upon the owner to explain how or why it happened. The rule of law here invoked cannot be applied to the state of facts disclosed by the foregoing evidence. The following cases fully support the ruling of the trial court: Button v. Frink,51 Conn. 342;1 Quinlan v. Sixth Avenue R.R. Co., 4 Daly, 487;Gollwald v. Bernheimer, 6 Daly, 212; Gray v. Tompkins, 15 N.Y. Supp. 953; Cadwell v. Arnheim, 152 N.Y. 182; Brown v. Collins, 53 N.H. 442;2 Bennett v. Ford, 47 Ind. 264; O'Brien v. Miller,60 Conn. 214;3 Creamer v. McIlvain, 89 Md. 343;4 Herrick v.Sullivan, 120 Mass. 576; Miller v. Cohen, 173 Pa. St. 488; Holmesv. Mather, L.R. 10 Ex. 261.
Appellant concedes that in the case at bar the horse ran away because of some unexplained cause. There is absolutely no evidence pointing to negligence on the part of the driver. When he was first seen he was "in the air," and falling from his seat to the ground. Whether he lost control of his horse through negligence is not shown, nor does any fact appear from which negligence could be inferred. Whatever caused the runaway is matter of speculation, pure and simple, and it is as fair to presume that the cause was unavoidable as that it was the fault of the driver. The burden was on plaintiff to show negligence of the driver, failing in which it became the duty of the trial judge to take the case from the jury. It is said in Button v.Frink, the Connecticut case cited: "If a horse is running away with his driver, there is nothing in the fact itself which tends to show negligence in the driver, or which tends to show how the horse became unmanageable, any more than a house on fire tends to show the origin of the fire, whether accidental or otherwise, and it would seem that it could as well be inferred, in such a case, that the party residing in the house was guilty of negligence in causing its destruction, in the absence of explanatory evidence showing the contrary, as it can be inferred from the mere fact that a horse is running *Page 576 away that the driver is guilty of negligence in causing his running, in the absence of proof to the contrary. If such a doctrine should be established as the law, it is not easy to see to what extent it might not be carried." And again: "A man driving furiously along the street runs into my carriage and breaks it. Here the act indicates negligence on the part of the driver. Again, the defendant's horse is running furiously along the street, dragging the shafts of a carriage after him, and runs against and breaks my carriage. This indicates accident only, and not negligence."
The verdict of the coroner's jury was offered in evidence by plaintiff, and on objection of defendants was excluded, and this is urged as error.
Appellant claims that the coroner acts in a judicial capacity, and that the verdict of the jury is prima facie evidence of thecause of death. It was admitted that the deceased died from the injury, and the only purpose of the offer, therefore, was to prove negligence. Upon the question of negligence the opinion of the jury was but hearsay. (Hollister v. Cordero, 76 Cal. 649.) Viewed as a judicial proceeding, the inquest could not bind defendant, who was not a party to it. The question was considered in the following cases, and the proceedings at the inquest excluded: State v. County Commissioners, 54 Md. 426; GermaniaLife Ins. Co. v. Ross-Lewin, 24 Col. 43;1 Louis v. ConnecticutLife Ins. Co., 58 App. Div. 137; 68 N.Y. Supp, 683; Pittsburgetc. Ry. Co. v. McGrath, 115 Ill. 172; Memphis etc. R.R. Co. v.Womack, 84 Ala. 149; The Central R.R. v. Moore, 61 Ga. 151.
Plaintiff called as a witness one Martin, and asked him the following question: "I will ask you a hypothetical question. What would you say if the driver of the wagon going up a grade, or on an even street, in the daytime, the horse in an ordinary jog, would lose control of his horse, and be precipitated to the ground — what would you say as to the competency or skillfulness of such a driver?" Defendants objected on the ground that the question was irrelevant and immaterial, that no foundation had been laid, and that it assumed facts not in evidence. The court rightly sustained the objection. Hypothetical questions, where allowable at all, must conform to facts proven, which this question failed to do. Furthermore, the pleadings did not put in issue the general skillfulness of the driver; the issue *Page 577 raised was as to his negligent management of the horse, which did not necessarily depend upon the general fitness of the driver. The complaint alleged only that the driver was negligent and careless, and mismanaged his horse, and hence the accident. Besides, it was not a case where expert testimony, such as was sought to be elicited, was admissible to prove the competency or incompetency of the driver.
The judgment and order are affirmed.
Hearing in Bank denied.
Beatty, C.J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 24th of December, 1901: —
1 50 Am. Rep. 24.
2 16 Am. Rep. 372.
3 25 Am. St. Rep. 320.
4 73 Am. St. Rep. 186.
1 65 Am. St. Rep. 215.