I concur in the reversal of this judgment, but upon the ground that the evidence is insufficient to sustain a finding that the death of plaintiff’s intestate was caused by the defendant’s negligence. The negligence for which the defendant has been held responsible is that of its driver in leaving a horse and wagon unattended in an alleyway, or, as it is called, a ‘ ‘ team-gangway. ” This place was not a public street or a public place to which passengers were invited, nor was it in sight of any train or in a position where leaving a horse unattended under ordinary circumstances could cause injury to any one. The horse and wagon were left there in obedience to an order from one of the railroad company’s employees, and it was apparently a safe place in which to leave the horse. At any rate, leaving the horse in that position caused no injury to any one; but, after the horse had been left in this position for some length of time, he' in some way wandered into a position alongside of the tracks of the railroad, and into a position in which it would be negligence to leave a horse unattended. There he was frightened and fell down, and in that position he was attended to by employees of the railroad company, who, instead of returning the horse to the place where he was *870first left, on securing him, left him unattended alongside the tracks and in a position where incoming trains would he liable to frighten a horse. The horse again became restive when an incoming train approached and again he fell down. Again the deceased, who was in the employ of the railroad company, endeavored to assist the horse to his feet, and while the horse was thus plunging and jumping the deceased was thrown against a pillar or some other obstacle and received the injury . which caused his death. - The driver was waiting upstairs in the depot until the railroad company returned a typewriter that the driver of the cart had brought to the railroad company’s offices.
It seems to me the proximate cause of the accident was the act of the deceased and his fellow-employees in leaving the horse unattended in a position where, if frightened or unmanageable, he would cause injury to those upon the premise's^ The driver had nothing to do with leaving the horse in this position where the accident occurred, but it seems to have been the act of the deceased and other employees of the railroad company, and it was leaving the horse in this position after the first fall that caused the horse to become again unmanageable. Leaving the horse in such a position unattended was certainly negligence, for which the driver would have been responsible if he had had to do with it. It seems to me that if the employees of the railroad company wished to take charge of this horse after he had wandered from the place where he had first been left by the driver, it was their duty to have led him away or secured him in some place where he would not be unattended and in a position to cause injury to those having to do with the railroad company’s property. Leaving the horse in the position in which the driver left him was not the proximate cause of the accident which caused the decedent’s death, but it was the act of the deceased and other employees of the railroad company after the horse had wandered from the place where the driver left him, in leaving him in a place where he might do injury to others. If the horse had then run away and injured a passenger the liability would be that of the railroad company and not of the defendant, and that liability is not changed by the fact that the deceased was an employee of the *871railroad company and not a passenger. It seems to me there was not sufficient evidence that the negligence of the driver was the proximate cause of the accident to sustain the finding of the jury. For that reason I think the verdict was not sustained by the evidence, and the judgment should he for that reason reversed.
Scott and Hotchkiss, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Order to he settled on notice.