ON MOTION POR REHEARING.
Ellison, J.We are asked to grant a rehearing in this case, which we feel constrained to refuse. We have no controversy with the counsel on the proposition of law he advances. Our conclusion was, and is, that the plaintiff has not made out a case which can be sustained under the law. We have kept steadily in view the legal principles which counsel point out, but find ourselves unable to draw from them conclusions favorable to the case made. The proposition is advanced that “negligence cannot be conclusively established by a state of facts upon which fair-minded men may well differ,” and it is then contended that, since the trial judge, the jury and one of the members of this court differ from the majority of the court, the legal proposition applies, and we are concluded from declaring plaintiff’s conduct to have been negligence. We assume that when a question of negligence is at issue in a trial court, and is .passed on by the judge and jury, that the result is the honest conclusion of fair-minded men. If, therefore, we allow plaintiff’s contention to prevail, we find ourselves powerless to reverse any cause for contributory negligence. It can always be said to an appellate court that, notwithstanding its opinion, the jury differed, and, it being a difference between honest and fair-minded men, the verdict must stand. In other words the verdict is absolute, and must stand in all cases whatever may be the opinion of the reviewing tribunal.
*313Referring to what defendant might reasonably have expected to result from switching a car with defective brake. It is quite truly said (and authority is cited to sustain it) that horses will become frightened by extraordinary sights and sounds, and that liability attaches for frightening horses by the negligent discharge of a gun. But suppose the injured party drives up to where he knows guns are to be fired, puts the reins out of his reach and stands upright on his loaded wagonwhat then ?
A case is reported from Tennessee (Meigs, 561), where a militia captain drilling his company on the public streets, and ordering a discharge of firearms, was held liable for the value of a horse killed by running away. But it is easy to see what the decision would have been in that case had the militia been upon their own parade grounds, and the owner of the horse had driven there knowing the drill was to take place. So, if the horse had belonged to some one who handled baggage or equipage for the company, and for this purpose always attended the drill, it would.be equally clear that no liability would have attached, and in such case the plea that the muskets were, somewhat heavier loaded than usual would probably not have been seriously received. The motion is overruled.