In his main charge to the jury the court instructed them to find for appellant if they believed "that the motorman saw plaintiff and discovered that his horses were frightened, and could have stopped his car, consistent with safety of car and passengers, a sufficient distance from plaintiff to have avoided further frightening of plaintiff's team, and avoided the injuries to plaintiff, if he was injured, and he negligently failed to do so."
Appellant objected to the instruction, insisting that it was insufficient in that it did not tell the jury that it was the duty of the motorman "to exercise every means at his command, consistent with the safety of the car and passengers, to prevent injuring the plaintiff," and requested a special charge which, had it been given, would have instructed the jury that the motorman's duty was as appellant claimed it to be, and to find for appellant if they believed the motorman failed to discharge the duty, without reference to whether he was guilty of negligence in failing to stop the car sooner that he did or not.
It is urged that the court erred when he gave the instruction and when he refused the special charge referred to. We do not think so. The objection to the instruction, on the ground stated, was plainly without merit, we think; for the duty of the motorman to stop the car on conditions stated was not otherwise limited in the instruction, as to the means he should resort to, than that same should be consistent with the safety cf the car and passengers.
It is urged in the brief of appellant that the instruction was also erroneous in that it required the jury, if they believed the motorman, after he discovered that the horses were frightened, could have stopped the car in time to have avoided further *Page 639 frightening them, to also believe that the motorman was guilty of negligence in not so stopping the car, before they could find for appellant. The instruction was not objected to in the trial court on that ground, and appellant therefore is not entitled to have his complaint considered here. But we have considered it, nevertheless, and think it should be overruled. Had the wagon and team been on appellee's track, and had the injury to appellant been caused by a collision between same and the street car, there would be merit in the contention. But the wagon and team were at a point on the street 15 feet from the track, and the testimony of appellant's witness Henderson, who had worked for appellee as a motorman, tended to prove, not only that it was not the duty of the motorman in charge of the car to stop it before he did, but that it was his duty not to so stop it. Henderson testified:
"In my experience driving a street car, I did not stop my car every time I saw a team shy. * * * I never went into emergency just because they were frightened. In my experience in driving a street car, I usually found it scared a team less by going by, and the less commotion you had. As a usual thing it frightens a team much more by stopping than going by a team. * * * If I was approaching a team and saw it was frightened and it became more frightened as I approached it, sometimes I would feel it my duty to stop the car, and then again under the conditions, the way the team was working, I would have to decide whether best to go by or stop. If you were going to get in a ditch, of course it would be best to stop, otherwise go by. * * * When the team is clear off to stop and only shows a degree of whirling, it would be best to go by if you could."
In view of the testimony referred to and that set out, it would have been error had the trial court instructed the jury to find for appellant on the conditions specified in his main charge, without reference to whether the motorman was guilty of negligence in failing to stop the car sooner that he did stop it or not. That being true, of course it was not error to refuse the special charge referred to requested by appellant.
The court instructed the jury that —
"It was the duty of the plaintiff, when he saw his team was frightened, to exercise ordinary care to take such action as would control them and prevent them from injuring him, and, if he failed to do so, he would be guilty of contributory negligence and could not recover damages against the defendant."
The appellant vigorously insists there was no testimony raising an issue as to contributory negligence on his part, and therefore that it was error to instruct the jury as set out above. We think appellant's own testimony as a witness made such an issue. He said his horses had been frightened by street cars before, and he knew they were afraid of such cars; and that on the occasion of the accident they became frightened when they first saw the car coming 40 or 50 yards away. We think the jury had a right to say that a reasonably prudent person under the circumstances surrounding appellant would have gotten off of the wagon and held the horses, or would have had his son, who was in the wagon with him, to get off of same and hold them.
The judgment is affirmed.