delivered the opinion of the court:
As all questions of fact, including the question raised as to the alleged excessiveness of the amount of damages for which judgment was rendered, have been finally settled against appellant by the judgment of the Appellate Court, and as no point is made on the instructions, nothing remains to be considered by this court except the alleged error of the trial court in refusing to permit the witness Doherty, who was the driver of the team of mules when they injured appellee, to answer certain questions intended to elicit testimony that the mules were gentle. There was no allegation in the declaration that the mules were vicious or ungentle, nor was any negligence of appellant in the driving or use of unsafe animals at the time and place of the injury counted on, but the gravamen of the charge in the declaration was that the defendant, by its said servant, so carelessly, improperly and negligently drove and managed them, that by and through such carelessness and negligence the said team of mules ran against and struck the plaintiff and caused the injury. No attempt was made on the part of the plaintiff to prove that the mules ran away or attempted to do so, or that they were vicious or ungentle.
It becomes unimportant, however, in this case to discuss the question whether or not, under such declaration, with no proof adduced by the plaintiff of a lack of ordinary gentleness of the mules, it would be error to exclude affirmative proof of the character of the mules for gentleness, for the reason that, although the particular questions mentioned were not permitted to be answered, yet the fact was sufficiently proved on re-examination of the same witness, and the defendant was not prejudiced. He testified that he had “driven these mules in the same way about a year. They were mules driven every day without lines, and I have always had my mules so that I could drive them without lines. I always used to have them broke in to mind just as soon as I spoke to them. These were broke in just the same way. They never would pull a foot over after I hollered at them.” Another witness, the manager of the defendant company, testified: “I use mules on account of their being easier taught and better than horses to use for that business, for they will go by word after they are worked about three months. They can be used without handling the lines or jerking. on them. You can tell them to get up when they are hitched to a horse, and they will pull. They will pull every time you tell them to. They are less liable to get away than a horse would be, and they are easier broken.”
There being no error in the record the judgment of the Appellate Court is affirmed. Judgment affirmed.