The action was brought to recover damages for injuries to personal property, alleged to have been caused by the negligence of the defendant.
The accident resulting in the injuries in question occurred February 19, 1898, at ten-thirty o’clock at night, on Butternut street, in the city of Syracuse. The defendant was then operating a single-track surface railway upon that street by means of electricity as a motive power. The plaintiff’s employee was engaged in delivering packages of meat to his customers in the city, using a horse and sleigh in that business. He drove up in front of a customer’s house, between the street car track and the gutter of the street, where the track was ten feet from the gutter, and leaving the horse untied and unattended, went to the back door to deliver a package of meat. While he was gone, a car came down the street, approaching the horse in front. When the car was about ten or fifteen feet away, the horse suddenly turned across the track in front of the car, and a collision took place, resulting in the injuries for which damages were claimed. It was a dark night and there was no light near the point of the accident. It was storming and there was sleet and ice upon the tracks and the trolley wire. The distance from the conveyance to the back door where the meat was delivered was ninety-two feet. The back door was behind the house, so that the street could not be seen from that door. A car approaching the horse could be seen one thousand and twenty-eight feet away. The plaintiff’s employee looked up the street and saw no car when he left the street to deliver the meat. It was about thirty seconds after he left the street when the collision took place. The horse was of good disposition, quiet, docile and gentle, never known to shy or show fear of anything before. The car was an old horse car fitted up with motors under it and made more noise than a new car. It was running down grade when the collision occurred, and at the rate of twenty miles per hour. The motorman had full power upon the car, and was looking in the car, laughing, and apparently did not see *85the horse until the car was quite near him. There was an ordinance of the city prohibiting the propelling of street cars at the point of the accident at a greater rate of speed that fifteen miles per hour. There was also an ordinance of the city making it a crime to leave a horse untied in the streets.
These are the facts, stated most favorably for the plaintiff, upon which the recovery was had in the case.
We are of the opinion that the plaintiff failed in two respects to make out a cause of action, or to make a case entitling him to go to the jury. He did not show that the negligence of the defendant caused the injuries, and he did not show his employee free from contributory negligence. The grounds of negligence submitted to the jury were excessive rate of speed and failure to have car under proper control. The court failed to call the attention of the jury to the question whether either of these acts of negligence caused the injuries. The plaintiff claimed that the car was going twenty miles an hour. Suppose it was going only fifteen miles an hour, or even ten miles an hour, could it have been stopped after the motorman had notice that the horse was likely to get upon the track, that is, when the car was within ten or fifteen feet of the horse \ Clearly not. The car running at ten or fifteen miles an hour would be within the ordinance, and this could under the circumstances hardly be regarded as an excessive rate of speed upon that street. If going at that proper rate of speed the ear could not have been stopped in time to avoid the injuries, then certainly it could not be said the excessive rate of speed caused the injuries. The same is also true of the other ground of negligence, the failure to have the car "under control. If being under control and running ten or fifteen miles an hour it could not have been stopped within the ten or fifteen feet, then it was not the failure to have it under control that caused the accident. The fact is the cause of the accident was the action of the horse in turning suddenly across the track, when the car was so close that the collision could not be avoided, even if the motorman was entirely free from any negligence, and this being so it could not be said that it was the negligence of the motorman that caused the injuries. It cannot be claimed that it was the duty of the motorman, if he saw the horse, when some distance away, to slow down his car and get it under such control that he could avoid *86a collision by stopping the car within a few feet if the horse chanced suddenly to go upon the track. He had a right to assume until the contrary appeared that the horse was gentle and not afraid of street cars, and would remain standing when the car approached and passed him, otherwise he would not have been left alone unhitched so near the tracks. He was only called upon to slow down and get his car under control so as to be stopped quickly, when he was apprised by some action of the horse that he was likely to change his position of safety and go upon the track, a place of danger.
The cause of the injuries was not the negligence of the motorman ; it was the act of the horse, left alone unhitched in the street, so near the car tracks.
It was the duty of the plaintiff to show that his employee was free from contributory negligence. The burden was upon him. The burden was not on the defendant to prove such negligence. The evidence bearing upon this question is not in dispute. The horse was left alone, untied, on a dark, stormy night, in a narrow space between the track and the street gutter, when cars were liable to come past at any moment, and at a place in the city where the fifteen miles an hoar ordinance applied, and where he was bound to assume a car might come down the track out of the dark at a rapid rate of speed, with its headlight staring the horse in the face, and so close to him that the side of the car would almost touch his body. And yet the jury was permitted to say, and they did say, that this was not contributory negligence. Comment is hardly necessary. The jury would have been justified in saying that the horse was morally certain under the conditions surrounding him to leave his position of apparent danger and make an effort to get to a place of safety. He stood his ground fearlessly, facing that object coming at him out of the dark, with its -bright headlight, until it was nearly upon him, and then he turned across the track. We apprehend that a man of no more than ordinary intelligence would, under the same circumstances, at least have taken to the sidewalk and put a safe distance between him and the car.
We cannot agree that the plaintiff’s employee should be found, even by a jury, free from contributory negligence under such a condition of facts.
The defendant moved for a nonsuit. Its motion was denied.' It *87should have been granted. The case should not have been submitted to the jury.
The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.