The appellee brought this suit against appellant to recover damages on account of the death of one mule and injury to another, which resulted from the running away of said mules, and which runaway was caused from fright at an automobile, which was negligently operated by appellant along a public highway. Defendant pleaded a general denial, and upon a trial before the court, without a jury, judgment was rendered for plaintiff, and the defendant appeals.
The evidence shows that appellant, with his wife, was traveling in an automobile along a public road, running north. This road intersects a public road running east and west, where appellant continued his journey westward. There was a culvert at said intersection, and as appellant approached it he slowed up, and after crossing it he increased the speed of the machine, which made a noise not unusual when starting up speed, but which some of the witnesses designated a "terrbile noise." Near, the intersection of these roads Henry Hawkins, 17 years of age, a son of appellee, had been working a pair of mules, hitched to a grader, a short distance west of said intersection, had unhitched them from the grader, and had driven them to one side of the road, and they were about 30 feet from the road when the automobile passed them. When the machine crossed the culvert the mules were in full view of appellant; the mules began to indicate fright and to cut up, which was seen by appellant. He increased the speed of his machine making the "terrible noise," causing the mules to break loose from the boy. They ran one on either side of the tree, and, the harness being too strong to break, one of the mules' neck, was broken, and the other badly injured. The appellant had placed some dogwood branches with blooms on them in his auto, which extended a short distance above the auto. Young Hawkins testified in reference to the cause of the mules running away as follows: "Well, the noise, the size of the thing, and all; of course they could see them things, and the rattling, I guess." Also: "Well, I didn't think about the mules getting scared. I would have drove them away if I had thought about them getting scared. I had time to get back out of the way. Could have got back out of the way," behind the schoolhouse, which was, 65 feet away, but thought he had them under control. There was testimony that the auto was seen coming about 200 yards away, and that Hawkins had to hurry to get out of the way of the auto.
Appellant contends that the evidence is insufficient, in that it shows there was no negligence on the part of appellant; that appellee was guilty of contributory negligence, and that the injury could not have been anticipated by appellant. It was lawful for the appellant to operate his machine along the public highway. It was also lawful for young Hawkins to have the mules where he did, and it was the duty of both to use care, the appellant not to scare the mules and cause them to run away, and young Hawkins to control his team and prevent them, if possible, from running away. The evidence, we think, justified the court in holding the appellant guilty of negligence in increasing the speed of the machine and allowing it to make the noise it did, which frightened the mules and caused them to run away. He saw that the mules indicated fright and were liable to run, and the court was warranted in *Page 65 holding that increasing the speed and making the noise was an act of negligence which should not have been committed. The evidence shows no necessity for increasing the speed at that point which caused the noise, as the machine with the accompanying noise, was calculated to frighten the mules. It was his duty to desist from moving forward, to prevent frightening the mules, if necessary, at least for a sufficient time for the mules to have been moved to a safe distance.
We think the rule applicable here that applies to the operation of railway engines. It is held in railway cases that the company will be held liable for injuries if the servants, by ringing the bell, blowing the whistle, or causing steam to escape, causes a team to run away if at the time such noise was made the employés knew, or have "reason to believe that it would probably frighten said team, and that injury might result" therefrom. Railway Co. v. Spence, 32 S.W. 329; Railway Co. v. Box, 81 Tex. 670, 17 S.W. 375; Railway Co. v. Carson, 66 Tex. 345,1 S.W. 107; Railway Co. v. Hamilton, 66 S.W. 797.
We do not think the position that appellant could not anticipate the injury is well taken. It cannot be said that no injury could be anticipated from the mules running away. They were yoked together by double harness, with some timber not far distant, and it was probable some injury would result to them by becoming frightened and running away. The rule in such cases is not that the particular injury could be anticipated, but that some injury might be anticipated under such circumstances.
The trial court having held that there was no contributory negligence on the part of young Hawkins, we are not inclined to hold differently, as the evidence does not show the appellee guilty of negligence. The judgment is affirmed.