There was evidence tending to show that whenever defendant’s horse came near an approaching electric car it would start up suddenly and run past the car, and that it was uncontrollable in this^ respect; that defendant had owned the horse over a year, and had very often driven it through the streets where the ears ran, and_knew how it. acted at these times; that on the occasion when plaintiff received his injury, the defendant, while still at some distance, saw the plaintiff’s party at work between the car track and the curb, and beyond them an approaching street car; that he kept on at ordinary driving speed, and thus brought the passing of(his team and the car at'the point where the men were working, — when for aught that appeared he might, by lessening his speed, have brought the meeting at a point where no one would have been endangered. This was evidence tending to show that the defendant did not take the care that a prudent man would have taken' in- driving such a horse in such circumstances.
There was also evidence tending to show that plaintiff’s position with his back to teams coming from one direction was required by his work; that he could not be working and watching for teams from the rear at the same time, but that once in a while he would look around; that others working with him did the same, and that some of these saw the defendant’s team and warned him; that he started towards the gutter, but did not have time to escape from the team, which passed the car in the manner before described. In view of this evidence, it could not be said as matter of law that the plaintiff was guilty of contributory negligence. So the defendant was not entitled to have a verdict directed on either branch of the case.
The defendant excepted to the failure to charge the jury “that it was the duty of the plaintiff to be on the alert and look out for approaching teams, taking all the conditions into consideration.” The court, in addition to proper general in*353structions regarding the plaintiff’s duty; called attention to the fact that the plaintiff must have known that there were liable to be more teams than usual on the street that day, and to the fact that he had been cautioned by his superior to look out for teams when at work, and put the inquiry whether in the circumstances surrounding him he was guilty of negligence in not knowing that the team was coming. .This-was all the defendant was entitled to in the line indicated by the exception.
Judgment affirmed.