At the close of the evidence the defendant requested the court to rule, first, that there was no evidence of negligence of the defendant, and, secondly, that the question of the sidewalk was immaterial. The court declined so to rule, submitted the question of negligence to the jury, and instructed them in such a manner as to indicate that in certain aspects of the case “ the question of the sidewalk ” might become material, closing this part of his charge as follows: “ I want to draw a distinction whether the boy was a traveller on the street in the ordinary sense, and not for the purpose of following the horse, or whether or not he was following the horse. If his purpose was simply to follow the horse, then it makes no difference whether he was on the sidewalk or in the middle of the street. But you will have a right to take it into account if he was simply going along the sidewalk for any purpose but following the horse.”
We think the second instruction should have been given. Whether' the accident occurred upon the sidewalk or in the barnyard was in dispute, but both sides agreed that at the time the plaintiff was injured he was approaching the horse, not as a *194traveller, but for the purpose of getting to him. and with the intention of touching him.
The plaintiff in his examination in chief testified as follows: “He [defendant] says, ‘ Would you like to have a ride on this horse ? ’ I says yes. He says, ‘ Come along, and I will give you a ride.’ At this time he was pretty near the gate when he said, ‘ Come along, I will give you a ride.’ I ran up to get a ride; he stopped the horse; before I ran up I was about five or six -feet from the horse’s heels; as I ran up to get a ride, the horse kicked up and hit me in the eye.” And on cross-examination as follows: “ He asked me if I wanted a ride, and I said I did, and I started forward to get the ride, and as I got pretty near the horse kicked up.” And also: “ The horse had been stopped until I got up to the horse; it was n’t long, and I was about as far away from him as from that [showing] to me, and I ran up to get my ride.”
The defendant testified thus: “ The horse made a kind of a little lunge forwards, and I looked behind, and Patrick was there just in the act like that [showing] reaching out towards the horse’s tail, and before I could say a word to him, the horse had kicked him in the eye.” And on cross-examination as follows : “ I saw him reaching out as if he was going to take hold of the colt’s tail with his right hand. I remember that, and right there at the same instant the colt lunged forward with his head and lunged upwards with his heels; the colt lunged before I saw Patrick; he made this lunge, and I looked back and saw Patrick reaching out with his hands, I should think, as if to take hold of his tail.” And also: “ I turned round this way [showing], and could see back there, and could see Patrick back of the horse reaching his hand to take hold of the tail.”
No other witness saw the accident.
The testimony of Knowles and O’Connor concerning the admission of the defendant is not inconsistent with this upon the question whether the plaintiff at the time of the accident was approaching the horse with the intention of touching him.
It is plain, we think, upon the whole evidence, that there was nothing to warrant a verdict that the plaintiff was injured as a traveller upon the highway, and in disregard of his rights as such traveller. Therefore, the “ question of the sidewalk ” was not at all material. Exceptions sustained.