The plaintiff voluntarily exposed himself, his buggy and his mule to the risk of any accident which might be caused 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 noise for (662) the purpose of scaring the animal. Where a horse is being driven or is running uncontrolled along a highway parallel to a railway of any kind, though it give 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 unless the animal is actually on the track in his front, or he has reasonable ground to believe that in its excited state it is about to go or may go upon it, so as to cause a collision. Snowden v. R. R., 95 N.C. 93; Wilson v. R. R.,90 N.C. 69; Carlton v. R. R., 104 N.C. 365. Where the engineer on a railway train actually sees a person driving a team in the direction of a crossing in his front, or in the act of passing over it, it is not his duty to stop unless he has reasonable grounds to believe that the horse or vehicle is in some way fastened or detained upon the track, or that some emergency has arisen which may be reasonably expected to cause a collision with consequent injury to person or property. Bullock v. R. R.,105 N.C. 180; Rigler v. R. R., 94 N.C. 604.
It may often happen that greater care is obviously necessary to avoid injury to a loose frightened animal (as in Wilson v. R. R., supra), than *Page 452 to a man in the same position on or off a track, because if apparently in possession of all his powers and faculties the man may be reasonably expected, up to the last moment, to avoid peril, while the excited animal is a ready to rush into as to run away from danger.
There was no testimony tending to show that the mule was upon the track in front of the car, or that there was any apparent danger that it would rush upon it. The motorman was the servant of the (663) quasi corporation, which enjoyed privileges granted to it by the Legislature in consideration of its duty to transport passengers safely and more speedily than they are ordinarily carried in vehicles drawn by horses. People who pay their money in the reasonable expectation of being carried expeditiously are not to be delayed by every person who ventures to test the nerve of a horse or a mule by driving it along the same street on which a company runs its street cars by electricity. Where persons subject themselves to such risks and no collision with the moving car ensues, injuries caused by the conduct of frightened animals are deemed in law to be due directly to their own want of care. Where the animal rushes upon the track in front of the car, the company is answerable for the consequences of a collision only where, by proper watchfulness on the part of the motorman, the danger might have been forseen and the injury avoided by using the appliances at his command to stop the car. Where there is apparent danger of running over or coming in contact with persons or animals, either the principle announced in Pickett v. R. R., ante, 616, or that laid down in Wilson v. R. R., supra, may be applicable. But it does not appear that the plaintiff was on or very near to the track. The car, according to the undisputed testimony, was stopped 15 feet distant from the place where his mule had stopped.
There was error in refusing to charge the jury that in no aspect of the evidence could they find in response to the issue that the injury was caused by the negligence of the defendant. For this error a new trial must be awarded.
New trial.
Cited: Rittenhouse v. R. R., 120 N.C. 546; Everitt v. Receivers,121 N.C. 522; Malloy v. Fayetteville, 122 N.C. 484; Moore v. R. R.,128 N.C. 458; Moore v. Electric Co., 136 N.C. 556; Crenshaw v. R. R.,144 N.C. 323, 326; Patterson v. Power Co., 160 N.C. 580; Barnes v.Public-Service Corp., 163 N.C. 365; Hall v. Electric R. R., 167 N.C. 285. *Page 453
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