Dissenting Opinion on Petition for Rehearing.
Roby, J.The record herein furnishes a very excellent illustration of the wisdom of the rule long established in this State, which leaves the decision of questions of fact with the jury to whom the cause is submitted in the trial court. Two *239members of this court have attentively read the evidence, and have reached different conclusions. Neither of them had the opportunity of observing the witnesses and applying to their testimony the tests of credibility which men use when the truth is desired.
The son of the appellee was driving west along Sixteenth street in Indianapolis with one horse and a single buggy. At the intersection of Sixteenth and Meridian streets, the horse, which belonged to appellee, was struck by a runaway team owned by appellant, and injured. To recover damages for such injuries, suit was brought in a justice court and a jury trial had, resulting in a verdict for appellee. An appeal was taken to the superior court of Marion county, and again tried before a jury, which returned a verdict for appellee for $51.25. Eronra judgment on the verdict, this appeal is taken.
There is no evidence tending to show that appellee’s son was guilty of contributory negligence. He was driving along the street in a usual and proper manner and was struck by a runaway team coming down'the intersecting street. It is established by the testimony of all the witnesses that as soon as he discovered the danger he stopped his horse, and did what he could to escape the collision. The rule applicable to accidents at railway crossings has, for obvious reasons, no application. Scofield v. Myers, post, 375.
The more serious question arises in regard to the appellant’s alleged negligence. It is conceded in the briefs that there can be no recovery unless the evidence shows that the appellant’s driver, in the management of the horses, either did something that he ought not to have done, or left undone something that he ought to have done under the circumstances. Why the horses became frightened is not shown. The driver gives no explanation. While being cross-examined he was asked: “What started those horses ? A. I could not say.” This comes far short of an explanation, while if the appearance of the witness was not greatly in *240his favor, the jury might, so .far as can be determined from the record, have properly refused to believe him. The appellant’s wife and another lady were in the carriage at the time, but they were not called as witnesses.
The appellee’s horse, when struck, was “right on a line with the curb”, “the east curb of Meridian street.” The driver of appellee’s horse testified: “When I saw him, it seemed like he pulled the horses right toward my horse.” Mr. Weaver, a wholly disinterested witness, testified in part as follows: “What did you observe in reference to the direction the runaway team was going at the time it reached Sixteenth street, and from that on until it struck the horse driven by young Mr. Gardner ? A. I thought he was trying to head them east. Q. Into Sixteenth street? A. Yes, sir. Q. Did they veer to the eastward as they got into Sixteenth street? A. Yes, sir.”
Immediately after the collision, young Gardner asked appellant’s driver “who the team belonged to.” He said he could not say, he “did not know who it belonged to”. Appellant’s driver also said that he was “glad he struck the horse. It was no telling when he would have stopped.” Appellant’s driver testified that he was perfectly calm when the collision occurred, and not scared, and that he “pulled” the team “a little to the left.”
The position of Gardner’s horse, as shown by some of the evidence, is such as to have rendered it impossible for the collision to have occurred except by the swerving to the right of the runaway team. If the jury, after seeing the parties to the occurrence on the witness stand, and hearing all the evidence, concluded that the driver of appellant’s team did pull them into Sixteenth street and against appellee’s horse, or if they believed that he did not use reasonable effort to pull them away from it, the verdict was right.
The driver, Ryan, stated that the horses started from New York street or Vermont street; that they ran north; that he tried to stop them by see-sawing on them; that it did no good; that he pulled them back against the dashboard, *241and then they would kick; that all he could then do was to let them go and keep them in the road as much as he could; that one of the tugs came loose and struck the horse around the legs and under the belly; that he did not notice whether the leather holding the tug was broken or not; that he always fastened it on when he hitched up; that he did not strike the horse with the whip in starting; that he had not so stated; that the horses had run about two squares before the tug came loose; that the tug was pushed off by the hind-quarters of the near horse. The witness further testified as follows: “Q. They were pretty skittish horses' to manage, wern’t they? A. I don’t know. One of them was considered that way but the other was all right. Q. One was considered quite skittish ? A. He is high spirited was all. Q. That is the horse that got the tug loose ? A. Yes sir.”
Appellee insists that the fact that the horses were running away raised a presumption of negligence against the owner. A forceful statement of the position was made by the supreme court of California, as follows: “The question at issue became narrowed down to the point whether Jones, who had charge of the cattle, and the persons assisting him, were guilty of negligence and want of due care in driving the cattle from the place where they landed to the slaughterhouse at the outskirts of the city, and also in their endeavor to capture the steer after he became separated from the herd. * * * The burden was on the plaintiff to prove, in the first place, that he received the injury for which he sought redress, and that such injury was done by the animal of the defendants described in the complaint, within the city of San Francisco, and that it happened without fault on his part. These facts proved, afford prima facie evidence of negligence on the part of the defendants, and then the burden of proof became cast on them to show that the injury did not occur by reason of any default on their part.” Ficken v. Jones, 28 Cal. 618; Gannon v. Wilson (Pa.), 5 Atl. 381; Hummel v. Wester, Brightly 133.
*242In Gray v. Tompkins, 40 N. Y. St. 546, it is held that the mere fact that a team of runaway horses collided with plaintiff’s horse and vehicle did not, in the absence of any evidence of negligence, either at the time the horses ran away or thereafter, raise any presumption of negligence.
In Gottwald v. Bernheimer, 6 Daly 212, it is held that the mere fact that a team of horses attached to defendant’s wagon ran away and injured plaintiff proves no wrongful act of the defendant. To the same effect are the following cases: Quinlan v. Sixth Ave. R. Co., 4 Daly 487; Sullivan v. Scripture, 85 Mass. 564.
The better reason is with the last cited authorities. Negligence being alleged must be proved, and no presumption of law arises to take the place of proof. The true rule relative to' the matter is stated by the supreme court of Connecticut: “There is no rule of law that shifts the burden of proof upon the defendant; that where the neglect of the defendant to explain the facts which indicate his negligence operates to strengthen inference of negligence, it does so wholly as a matter of evidence, producing its effect in the ordinary manner on the judgment of the jury, and not by any superadded force of law; that the cases where the proof on the part of the plaintiff of the damage done him by the defendant is enough to make a prima facie case of negligence on the part of the defendant, are cases where the act causing the damage was of a nature to indicate negligence, and this as the act addresses itself to the judgment of the jury on this point, and is distinguishable by their judgment from an act which does not indicate negligence, they judging for themselves of the character of the act in this respect.” Button v. Frink, 51 Conn. 342, 351, 50 Am. Rep. 24.
“ ‘There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evi*243dence, in the absence of explanation by the defendants, that the accident arose from want of care/ This statement of doctrine has met with judicial approval in miany subsequent cases: Bovill, C. J., in Czech v. General Steam, Nav. Co., L. R. 3 C. P. 14, 18; Transportation Co. v. Downer, 11 Wall. 129, 134, 20 L. Ed. 160; Dougherty v. Missouri Pacific Railroad, 9 Mo. App. 478, 485.” Hill v. Scott, 38 Mo. App. 370, 374.
The failure of appellant to explain the cause of the horses’ tunning away was a proper matter for the jury to consider in connection with the statement of the driver to the effect that one of the horses was all right, and the fact of the runaway.
“ ‘blow, it is a well settled rule of evidence that when the circumstances in proof tend to fix a liability on a party who has it in his power to offer evidence of all the facts as they existed, and rebut the inferences which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting, would support, the inferences against him; and the jury is justified in acting upon that conclusion. “It is certainly a maxim” said Lord Mansfield “that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.” Blatch v. Archer, 1 Cowp. 63, 65. It is said by Mr. Starkie, in his work on evidence (Vol. 1, p. 54): “The conduct of the party in omitting to produce that evidence in elucidation of the subject-matter in dispute which is within his power, and which rests peculiarly within his own knowledge, frequently affords occasion for presumptions against him, since it raises strong suspicion that such evidence, if adduced, would operate to his prejudice.” ’ ” Pacific Coast, etc., Co. v. Bancroft-Whitney Co., 94 Fed. 180, 198, 36 C. C. A. 135; Gulf, etc., R. Co. v. Ellis, 54 Fed. 481, 4 C. C. A. 454; Hart v. Washington Park Club, 157 Ill. 9, 41 N. E. 620, 29 L. R. A. 492, and authorities cited pp. 494-5.
*244It therefore follows that the fact that the appellant’s team was running away, and that no explanation or an insufficient explanation was made as to the occasion of their so doing were proper facts for the jury to consider, together with any other relevant facts, upon the question of negligence in allowing them to'do so. It is not necessary to say what weight any circumstances shall have. That was for the jury; and when we have determined that evidence sufficient to justify an inference of negligence in allowing the horses to run away, or in failing to prevent the collision, was introduced at the trial, the duty of this court is clear. It has so often been expressed that citation of authority is superfluous. It was expressed by the Supreme Court in a case of very great importance as follows: “But it is the province of the jury to determine such disputes and controversies, and if they err therein it is a mistake of fact and not of law. The only remedy for the correction of such a mistake is an application to the trial judge for a new trial. If he overrules such motion, the presumption is that he did his duty and that the jury had not made any mistake of fact. Cincinnati, etc., R. Co. v. Madden, 134 Ind. 462; Deal v. State, 140 Ind. 354;” Hinshaw v. State, 147 Ind. 334-353, 354.
An earlier case decided by the Supreme Court is sometimes cited as having overthrown the rule. Lake Erie, etc., R. Co. v. Stick, 143 Ind. 449, 465. Such is not the fact. All that was decided in that case is that there was no evidence before the jury tending to exonerate the plaintiff from contributory negligence. The writer of the opinion inserted some general views of his own, reflecting upon the integrity of the circuit judges of the State; but that question not having been presented, it must still be presumed that for his own acts performed under the obligation of an oath every man answers primarily to his own conscience. The merits of the case were presented to the jury. Whitesides v. Hunt, 97 Ind. 191, 210, 49 Am. Rep. 441, and its verdict ought to he respected. I therefore think the petition for a rehearing should be granted.