I dissent from the order denying a rehearing. The proposition discussed in the opinion of the Department, and upon which the case is decided, is not the proposition upon which a correct decision depends.
It is true that the appellant does quote and claim the application of the rule thoroughly established by several recent decisions of this court, that "when a thing which causes the injury is shown to be under the management of the defendant, and 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 the want of care." But she does not contend, and her case does not require her to maintain, that a legal presumption of negligence arose from the mere fact that the horse ran away, requiring the court to instruct the jury that upon proof of that fact alone they must, in the absence of explanation by the defendant, find a verdict in her favor. No question as to the shifting of the burden of proof was or could be involved in the case. The plaintiff had been nonsuited by the trial court, and all that was necessary for her to do in order to reverse that order was to show that she had introduced evidence sufficient to make out a prima facie case for the jury — a case, that is to say, from which negligence might be inferred as matter of fact, as contradistinguished from a presumption of law.
In view of this distinction, the long list of cases cited in *Page 578 the Department opinion falls very far short of sustaining the ruling of the trial court. Take the first case cited. (Button v.Frink, 51 Conn. 342.) There, the defendant's horse ran away in consequence of a broken bridle, causing a collision, in which plaintiff was injured. Upon this evidence the trial judge instructed the jury, in effect, "that in the absence of explanatory testimony by the defendant, showing that he was guilty of no negligence, negligence might be inferred against him as matter of law." On appeal, this was held to be error, upon the ground, expressly stated in the opinion, that the court could not instruct the jury, as matter of law, that such evidence was sufficient to make out a prima facie case of negligence, and to shift the burden of proof to the defendant to explain or excuse it. But they did not decide that on such a case the court could properly grant a nonsuit. On the contrary, they took pains to distinguish the cases in which, upon a similar state of the evidence, nonsuits had been refused, and point out, what is sufficiently apparent, that on a motion for a nonsuit the court can only consider what the evidence tends to prove as matter of fact, and if it is prima facie sufficient, leave it to the jury to determine the fact — while in giving the instruction there in question the court had usurped the province of the jury in holding that evidence from which a jury might or might not infer negligence as a fact established a legal presumption of negligence. So far from holding that the fact of the runaway and collision is no evidence of negligence, the court, in its opinion, uses this plain and unequivocal language: "Now, in suits brought for damages done in these cases, if the plaintiff should prove only the fact of the collision, and the defendant should offer no evidence whatever, the court ought to charge the jury that the burden of proof is not in either case thrown upon the defendant as matter of law, but that the plaintiff is to recover or not, according as they shall, in the exercise of their judgment, consider the acts as in themselves indicating or not indicating negligence on the part of the respondent. The failure of the defendant to offer any explanatory evidence may operate tostrengthen the plaintiff's case, but it must always be in a case where the act done carries, in itself, an indication of negligence, or in other words, creates a presumption of fact, not of law, that the defendant had been guilty of negligence."
The italics in the above quotation are mine, and are intended to call attention to the distinction constantly insisted *Page 579 upon throughout the opinion, between the question of fact involved in the motion for a nonsuit and the unwarranted presumption of law stated in the instruction. Note, also, that upon mere proof of the collision the plaintiff has made a case for the jury which may be strengthened by the failure of the defendant to offer explanatory evidence. Still another thing to be noted in this opinion for its bearing on the present case is the distinction made between the case of a horse running away without a driver, and the cases in which the driver is holding the reins and exerting all his power to check the team. In the latter case it is said that there is nothing in the mere fact of the runaway tending to prove negligence, but there is no question of the authority of those cases in which it has been held that horses running in a public street without a driver is, of itself, evidence of negligence requiring explanation. Several cases holding this doctrine are cited in appellant's brief, and I know of none to the contrary. A single citation will suffice to show the solid basis upon which the doctrine rests: "The fact itself that a team is found running away upon the streets of a city, without a driver, requires explanation as to how and why this should have been, and if the driver is not produced as a witness, or his absence accounted for, it is fair to presume that no satisfactory explanation could have been given." (Maus v.Broderick, 51 La. Ann. 1153.)
In this case the horse ran away without a driver. The evidence shows that he left the wagon, losing the control of reins and brake before the horse started to run. How he came to leave the wagon, no one knows. He was heard to cry out, "Whoa, whoa," and the witnesses, on turning to look, saw him in the air, between his seat and the pavement. He "sat" on the ground, but immediately got up and ran after the horse, which then for the first time started to run. There is nothing in this evidence to warrant an inference that the driver was thrown from the wagon by reason of some accident. There is no suggestion of an accident, and a sober driver is not likely to be thrown from a slowly moving wagon on one of the city streets. I should infer, on the contrary, and certainly a jury would have been warranted in assuming, in the absence of any explanation, that the driver had dropped the reins and jumped to the ground for the purpose of recovering them.
The case, in my opinion, was clearly one for the jury. *Page 580