(dissenting). This is an action for personal injuries claimed by the plaintiff to have been caused by the negligence of the defendant. The injuries were sustained by the plaintiff, May 17, 1892, upon a highway within the corporation limits of defendant. The highway in question crosses the River Rouge a few rods north of the place where plaintiff was injured, and the approach to the bridge crossing the river is elevated at the point where the accident happened 8 feet 10 inches on the west side, the descent being absolutely perpendicular, and 8 feet 6 inches on the east side, the descent being a slope above the surrounding country. The approach to the bridge is the same width as the bridge where they join, but a few yards north of the bridge, and at the point where the plaintiff was injured, it is but 17 feet in width. There was no barrier on either side of the approach to prevent travelers from going off the road down the embankment on either side. There was a plum tree a little west of the roadbed, at a point where the approach to the bridge ended, and a few rods south of the place of the accident, towards the main part of the village. Upon the morning in question, Andrew Bell, the plaintiff, was driving along the said road towards the main part of the village, on his way to the home of his sister-in-law, Susan Bell, who lived on the other side of the village. He was driving his horse, which he described as gentle, and not given to shying, attached to his buckboard. He had crossed the bridge, and was upon the southern approach to the same, at a point nearly abreast of the piling, when the horse caught sight of some boys in the plum tree picking *394blossoms, and thereupon started back. The buckboard wheels were cramped, so that, if the horse continued to back, Bell would have been thrown out backwards, down the abrupt descent upon the west side, there being no "barrier to arrest the progress of the vehicle. To save himself from this danger, he struck the horse one blow with the whip, and, in obedience to the blow, the horse started forward at a slow pace (about half as fast as a man can walk). The loosely-packed earth on the east side of the approach gave way, the horse slipped down the east side of the approach, and plaintiff was thrown out, and sustained the injuries complained of. The evidence shows that the horse was not running away; that, at the most, he took but three or four steps back, and that plaintiff did not lose control of the horse; and that the horse had his own way but momentarily, at the most.
The foregoing is the statement of facts taken in the main from plaintiff’s brief, and we find that there is testimony tending to support the statement in every particular. As the circuit judge directed a verdict for the defendant, the inquiry is whether, assuming this state of facts, the plaintiff was entitled, under any theory, to take the judgment of the jury as to the question of defendant’s liability. The learned .circuit judge, while stating that he was unable to reconcile all that this court has said in various cases, regarded it as stare decisis that the presence of those boys in the plum tree and the consequent fright of the horse was the proximate cause of the injury to plaintiff, and directed a verdict for defendant.
We think it must be conceded that this court has not made the rule in this class of cases entirely clear. It is equally true that other courts, in dealing with the broad question of proximate cause, as well as in dealing with the more restricted one as to what is to be deemed an intervening cause, such as relieves a municipality from responsibility for defective highways, have encountered difficulties at every turn, and have not always dealt with the question logically. See this illustrated in cases commented on by *395Judge Cooley (Cooley, Torts, pp. 76, 77, and also at page 622 et seq.). At page 70, Judge Cooley states one of the rules relating to the subject as follows:
“If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent. But if the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote.”
In a very able discussion of the causal connection by Mr. Wharton, at section 103 of his work on Negligence, he reaches the conclusion that where a township is negligent in failing to keep its highway in repair, and an injury results from a frightened horse striking against a defect in the way from which, if he had not been frightened, he could have been safely guided by his driver, the municipality is not liable to an action, for reasons fully stated by him. He adds, however:
“This mode of reasoning is inapplicable if the evidence is that the horse, being driven with due care, simply shies to an extent common and probable among horses, and when shying he deflects a few feet from the beaten track, and then strikes against the defect. In this case, as such shying is part of the natural and probable habits of horses, and does not, when only producing a slight change of course, make the horse unfit for use in a public road, the road-inaking authorities are liable for the consequences.”
See, also, Whart. Neg. § 983.
There are many cases which, as pointed out in Langworthy v. Township of Green, 95 Mich. 93 (54 N. W. 697), hold to a still stricter rule of liability, and maintain that the fact that the horse is frightened, and at the time uncontrollable, does not relieve the municipality of liability.
*396We think the better rule is that quoted from the text of Wharton on Negligence, and this rule we find abundantly supported in those jurisdictions in which the stricter rule, above adverted to, does not prevail. The case of Wright v. Inhabitants of Templeton, 132 Mass. 49, is very similar in its facts to the present. The plaintiff’s horse was frightened by the lantern of some boys fishing. The horse backed up, cramped the wagon, and carried i against the railing, which gave way. Defendants pre ferred a request that, if the horse backed a distance of 20 or 30 feet, the plaintiff could not recover.' The court held that this request was properly refused.
It was held, in effect, in Hinckley v. Inhabitants of Somerset, 145 Mass. 326 (14 N. E. 166), that the township might be liable if the driver did not lose control of the horse, or lost control for a moment only, and either regained control, or would have regained it but for a defect in the way. See, also, Harris v. Inhabitants of Great Barrington, 169 Mass. 271 (47 N. E. 881).
The case of Olson v. City of Chippewa Falls, 71 Wis. 558 (37 N, W. 575), is quite similar in its facts to the present. It was said:
“The team instantly and suddenly became frightened by some suddenly appearing object, * * * and as instantly and suddenly backed. * * * Such a movement of any team would not be at all uncommon under such circumstances, and so the city might have anticipated when it left the steep bank of the creek so unguarded in such a place.”
The distinction contended for in the present case was again noted by this court in Gage v. Railroad Co., 105 Mich. 335 (63 N. W. 318), and recognized in Simons v. Township of Casco, 105 Mich. 588 (63 N. W. 500), but was clearly lost sight of in Doak v. Township of Saginaw, 119 Mich. 680 (78 N. W. 883). In the last case a motion for a rehearing should be granted. We think the plaintiff was entitled to go to the jury.
It is contended in this court that the highway at this *397point was a part of the bridge. It does not appear that the point was made on the trial, and, as the facts are not as fully developed as they may be on another trial, we do not discuss it.
The judgment should be reversed, and a new trial ordered.
Moore, J., concurred with Montgomery, C. J.