The only question in this case is whether or not there was sufficient evidence of negligence to warrant its submission to the jury. The trial court held that there was and the Superior Court reached the same conclusion. I think they were right. This court in McCracken v. Curwensville Boro., 309 Pa. 98, 115,163 A. 217, quoted with approval the following from 26 R. C.L., pages 1067-69, section 75: "A verdict should not be directed if on all the facts and circumstances . . . the evidence is not such that honest minds could reach but one conclusion." The United States Supreme Court laid down the same rule in McDermott v. Severe, 202 U.S. 600 (and in other cases therein cited), as follows: "Negligence only becomes a question of law to be taken from the jury when the facts are such that fair-minded men can only draw *Page 471 from them the inference that there was no negligence. If fair-minded men, from the facts admitted, or conflicting testimony, may honestly draw different conclusions as to the negligence charged, the question is not one of law but of fact, and to be settled by the jury under proper instructions." As to the legal significance of the facts in the instant case, honest minds reached different conclusions. This makes the determination of the issues raised preeminently a jury question. The trial judge submitted the issues to the jury in an accurate and painstaking charge. The jury found for the plaintiff. I agree with the trial judge and the Superior Court that there was sufficient evidence of defendant's neglect of social duty to warrant the verdict returned.
Every human being possessed of sound mind and understanding is legally bound to exercise a certain amount of foresight and care in controlling any animal or instrumentality in his possession. At common law it was held that every man must have some knowledge "of the quality of his beast" (1 Hale P. C.430). See Pope v. Reading Co., 304 Pa. 326, 333, 156 A. 106. For example, it is established law that if a man turns a horse loose on a public street and that horse injures someone, the man who turned the animal loose is liable for the resulting damage. This court said in Goodman v. Gay, 15 Pa. 188, at 193: "All men know that a horse which has been stabled and well-fed will, when turned out, run and plunge, and become dangerous in the midst of people." In the case at bar, defendant arranged for horse racing on a track which was muddy in one spot. A race track that is muddy in one spot is far more dangerous than a race track that is muddy all around its course. When the horse that caused the damage reached this muddy spot, it slipped and fell, threw its rider, and then ran away. The secretary of the defendant association testified under cross-examination that "he was in charge of the races on the afternoon of the accident, that at the time the horse was running riderless and uncontrolled *Page 472 around the race track he was in the judges' stand and saw the horse circling the track, and that nothing was done to catch or control the runaway horse." The fact that defendant association had taken no precautions to safeguard the people it had invited to be present from any harm that might result in the event there was a runaway, was, in my judgment, a neglect of duty. Furthermore, that nothing was done to catch the runaway horse was, in my judgment, a neglect of duty. The Superior Court in its opinion cites these facts: (1) "One of the horses fell and threw its rider. This horse was subsequently caught near the grandstand." (2) "At the turn just beyond the halfway post of the track, another horse fell and threw its rider. This horse got up and started around the track following the other horses in the race. It did not stop at the grandstand, but continued around the track two additional times with the hood which it wore in the race partially down over its eyes and nearly obscuring its vision. On the third time around at the turn at the right of the grandstand, it swerved to the outer rail of the track and jumped over it and among a number of spectators who were standing . . . near the fence on the outside of the race track rail. [Among these was the severely-injured plaintiff.] . . . (3) According to one witness, 'No effort whatever was made to catch the runaway horse, or to keep it on the inside of the track where it could not inflict injury on any of the patrons on the fair grounds; that he saw no mounted marshal on the track at any point where you could see him from the grandstand.' . . . (4) There were a number of witnesses on behalf of the plaintiffs who testified that where the horse fell there was a muddy, slippery place on the track. One of plaintiffs' witnesses, Tilman H. Paul, a licensed starter, testified that this condition would make the track unfit for running races." . . . (5) There was also testimony to the effect that "the fence between the race track and the roadway was *Page 473 not of sufficient height to prevent race horses from leaping into the roadway or passageway."
In view of these facts, succinctly and correctly stated by the Superior Court and fully justified by the evidence, I cannot concur in the conclusion of the majority that there was such a total failure of proof of defendant's negligence that the trial judge should have given the jury binding instructions in defendant's favor. If one visualizes the situation just before Mrs. James was injured and imagines himself witnessing this riderless horse galloping around the track two or three times with no one, in behalf of the defendant association, making the slightest attempt to prevent it from doing damage to people who were lawfully present, he would, I think, be likely to come to the conclusion that defendant association was guilty of utter disregard of its duty toward the people it caused to assemble to witness its races. For the association not to have had persons present to guard against such a contingency as actually happened was as neglectful of due care as it would be for a city not to police a large gathering of human beings or in not having firemen present in an auditorium subject to fire hazards and which was filled with human beings. Fires do not ordinarily break out in such places but they may do so and prudent management always takes precautions against them. Failure to take such precautions is negligence. The catching of runaway horses by policemen and others adept in catching such horses, on city streets, when horses were more numerous than they are now, was a common occurrence. Defendant association should have reasonably anticipated that such an occurrence as took place on this track on the day in question might happen, and it should have taken the necessary precautions to properly safeguard the persons assembled there, from the dangers of a runaway horse. The woman who was a victim of this runaway horse would not have been injured if the officers of defendant association had *Page 474 taken the most elementary precautions dictated by a normal, humane regard for the safety of others.
I would affirm the judgment of the court of common pleas and of the Superior Court.
Mr. Justice BARNES joins in this dissent.