Opinion,.
Me. Justice Gkeen:It is beyond all question that the direct and immediate cause of the plaintiff’s injury was the overturning of the wagon *611in which he was riding. It is equally certain that the wagon was upset by the sudden falling of the animal that was drawing it. What caused the mare to fall is not clear, and is not explained by the plaintiff’s testimony. She did not take fright, she was not running away, bitt on the contrary was moving very slowly through a mud puddle. She got entirely through, and then to use the language of the plaintiff in his testimony, “the mare just fell over and fell with her head and neck right across the fence.” The fence gave way and the plaintiff was precipitated down the bank by the side of the road and was injured. Of course, the fence, whether sufficient or insufficient to sustain the force of the fall, had nothing to do with producing the fall.
The defendant alleged, and gave evidence to prove by the declarations of the plaintiff to a number of witnesses, that the mare was harnessed with a collar too small for her, and that it choked her, and this choking was the real cause of the mare’s falling. If this was the true cause of the falling of the mare, it is difficult to understand how the defendant could he held responsible either for the fall or its consequences. The defendant in the fourth point asked the court to charge the jury, that if the accident was caused by the uncontrollable struggle of a choking horse, or from this cause concurring with a defect in the highway, their verdict must be for the defendant. To this the court replied, “ Refused, unless the plaintiff by bis negligence contributed to, or was the cause of the uncontrollable struggle of the horse.” The vice of this answer is, that the court confounded the effect of an independent cause of the accident, with the effect of the plaintiff’s contributory negligence, and really held that it required a combination of the two in order to relieve the defendant from responsibility for the accident. Now, the contributory negligence of the plaintiff alone and by itself, if it existed, was sufficient to discharge the defendant from all liability. So, also, if the accident was produced by an intervening and independent cause for which the. defendant was not responsible, that too would relieve the defendant from liability, and this was the meaning and substance of the point. The point should have been affirmed as it stood. It was, however, refused, unless the independent cause was combined with another *612and quite different agency, to wit, the plaintiff’s contributory negligence, and in this there was error. The first assignment of error is therefore sustained.
The same idea though in a somewhat different form was repeated in the portion of the charge covered by the third assignment. The court there said, “ If you conclude that the collar was too small and choked the mare and that this choking was the immediate cause of the accident, then you will determine from all the circumstances in the case as they appear from the testimony bearing on this point, whether the plaintiff knew that the collar was too small and took upon himself the risk of using it, or, if he did not know it, whether under all the circumstances he ought to have known it.” Here, again, although the choking of the mare, resulting from a too tight collar, was “ the immediate cause of the accident,” it is practically held to be no defence unless the plaintiff had knowledge of it, or ought to have known it. In other words, unless his concurring negligence was combined with “ an immediate cause of the accident ” for which the defendant was not responsible, there could be a recovery. As we have already seen, this was clear error. This error is more conspicuous because of the answer to the defendant’s fifth point. In that point the proposition was presented that the defendant was not liable if the horse choked from a collar too small for him and became uncontrollable and plunged over the bank and would not have done so but for the choking, and this the court affirmed. But if this be so, as it certainly is, it was both inconsistent and erroneous to say that in addition to this there must be concurrent negligence of the plaintiff. If the tight collar produced the choking which caused the horse to fall, and thereby caused the accident, it is certainly of no consequence whether the plaintiff knew that the collar was too tight or not. Whether he had or had not knowledge of the smallness of the collar, and that it was choking the horse, the effect of the choking, as productive of the accident, would be precisely the same, and hence, if as an independent producing cause of the accident, it would suffice to relieve the defendant from responsibility, it would accomplish that result without any reference to the plaintiff’s knowledge. The judgment is reversed on the first and third assignments of error.
*613We find it difficult to discover in tlie testimony any connection between any delinquency of the defendant and the fall of tlie horse, in the relation of cause and effect. The plaintiff says he liad passed the tree about the distance of five panels of fence, and had also passed through and out of the mud puddle before the mare fell, and hence we cannot understand how either the tree or the mud puddle produced the fall.
Judgment reversed.