On the last day of January, 1905, in the town of Granbury, appellee was seriously injured in a runaway accident, and in September following brought suit for damages against appellant, which resulted, April 19, 1906, in a verdict and judgment in his favor for five thousand dollars, from which this appeal is prosecuted. Appellant was held liable for the accident because of its negligence in partially obstructing Crockett Street in said town with one of its box cars, which so frightened the animal appellee was driving — a mare — as to cause her to run away. In the effort to save himself appellee jumped from the buggy in which he was riding and sustained the injuries complained of. Crockett Street was fifty feet wide and the car extended out into the street about two thirds of its width, but left a space between it and the cars on the opposite side of the street wide enough for two buggies to pass. Appellee was driving along this street toward the railway crossing, expecting to pass through this opening between the cars, and when he reached the first track, which was about twenty feet from the one on which the car stood in the street, he saw that his mare did not like the situation and, to use his own language, "turned her clear around," and "headed her right into the opening." As others saw it, the mare at this point whirled around and after being brought back facing the opening and urged forward whirled again and ran off. Appellee thus describes what occurred when he reached the crossing:
"The animal was going right towards the end of this car and when she got right close up to the track she didn't want to go, she wanted to go to the right and I let her do so and turned her right around and brought her back facing that opening and then my recollection is I stopped her and coaxed her then and she walked right along until she crossed the first track and there is where she stopped. She was up pretty close to the car when she got scared, the buggy was up across the first track but I can not say whether the hind wheels were over or not. The front wheels and the animal were over and when she turned she swayed a little to the left and then she just fell right back and wheeled to the right and I think the fore wheel of the buggy caught in the track there in a kind of a cramp."
The head of the mare was then from five to ten feet from the opening. Appellee had been driving the mare about a month and considered her gentle and thought he could control her and go safely through the opening, as others were doing, although he admitted that on a former occasion, when there was no car in the street, a section hand had led her across the railway tracks at this point, though appellee did not consider it necessary, and on that morning that she had shied at a woman with an umbrella. According to the testimony of the former owner of the mare she was entirely gentle and safe and had been so represented to appellee when he bought her, about one month prior to the accident. By traveling Houston Street, which is the next street west of Crockett and which is also crossed by the railway, appellee would not have encountered any obstructions at the crossing there. Indeed, he had just left this street and gone across to Crockett Street, coming into it at or *Page 601 near the crossing, which, however, was the usual course for the journey he was then making.
The main contention of appellant is that the court should have instructed a verdict in its favor because of appellee's effort to force his mare through the opening between the cars after he saw that she had become frightened, which is put forward as the proximate cause of the injury instead of its negligence in leaving the car in the street. But we do not so interpret the law of proximate cause. At all events, no such application of it was made in the following analogous cases: Sherman S. S. Ry. v. Bridges, 16 Texas Civ. App. 67[16 Tex. Civ. App. 67]; Pecos N. T. Ry. Co. v. Bowman, 78 S.W. Rep., 22; Missouri, K. T. Ry. v. Jones, 13 Texas Civ. App. 377[13 Tex. Civ. App. 377]. For an interesting discussion of the question, see Chicago N.W. Ry. Co. v. Prescott, 59 Fed. Rep., 237. See, also, the lucid opinion of Chief Justice Gaines in Texas P. Ry. Co. v. Bigham, 90 Tex. 223 [90 Tex. 223], though it has always seemed to us that the principle so well treated in that opinion was misapplied in that particular case. We will not undertake to reproduce the discussions contained in the opinions cited, but will notice briefly the feature of this case so persistently urged by appellant, namely, that appellee in trying to force his mare through the opening between the cars after she became frightened voluntarily encountered known danger and took the chance of escaping injury. One answer to this is that the evidence did not conclusively show that the danger was known to appellee. His testimony was to the contrary. True, he knew that the mare he was driving was afraid to pass between the cars, but it does not follow from this that he knew it to be dangerous to urge her forward. If he believed and had good reason to believe, as some of the evidence tended to prove, that the mare was of a gentle disposition and manageable even when frightened, although mistaken in this, it can hardly be said that he encountered a known danger, or at least that he acted as a person of ordinary prudence would not have done. A traveler is not required to give up the use of a street in such case, but may assume some risk with impunity, especially where, as here, the situation itself amounts to an invitation to use it.
But it is insisted that, with the situation before him, if appellee can be excused for not anticipating that the mare would run away in spite of his efforts to control her, appellant should also be excused for not contemplating that result. The explanation of this paradox is perhaps to be found in the differing situations of the parties. The partial obstruction of the street with a box car in such manner as to frighten horses of gentle or supposed gentle disposition would tend to prove negligence on the part of appellant, and it must be held to have contemplated not only that such horses might become frightened but also that they might become unmanageable and run away, these being the natural consequences of such an act of negligence, or at least a jury might so find. On the other hand, a traveler on the street whose horse takes fright at such an object may reasonably, but erroneously, conclude that he can safely manage him, and this, too, perhaps, the wrongdoer may be held to have contemplated as a natural consequence of his act of negligence. In the nature of things no one can know what a frightened horse will do, and if the condition of fright is brought about by *Page 602 the negligence of another, the person using the horse, if he acts with reasonable prudence, should not be denied recovery merely because he made a mistake in supposing that he could control him notwithstanding the condition of fright, and persisted in going forward on his journey, instead of turning back and pursuing a different route, as appellant insists appellee should have done. Each of these features was present in some of the cases cited above, in which recoveries were sustained.
It is next insisted that the evidence did not warrant the verdict, but we find that it tended to prove and warranted the jury in finding, (1) that appellant was guilty of negligence in leaving the car in the street; (2) that this was the proximate cause of the runaway, and (3) that appellee was not guilty of contributory negligence — either in driving a wild horse or in acting on the assumption that he could control the animal. The charge submitting these issues we approve and also the action of the court in refusing numerous special charges. The charge principally objected to was the following: "And on the issue of contributory negligence you are instructed that unless contributory negligence is made to appear from the evidence of plaintiff and his witnesses, the burden is on the defendant to establish the defense of contributory negligence." But we think the court had authority for this charge in Texas Pac. Ry. v. Reed, 88 Tex. 447.
This brings us to the question of the measure of damages, and here we are constrained by opinion in International G. N. Ry. Co. v. Butcher, 98 Tex. 462, which seems distinctly in point, to hold that the following charge is subject to the objection that it authorized the recovery of double damages: "If, under the evidence and law in this case, you should find for the plaintiff, you will assess his damages at such a sum of money, paid now, as you believe from the evidence will compensate him for the physical pain and mental suffering you find that he has undergone because of said injury. And also at such a sum of money as you believe from the evidence to be the reasonable value of plaintiff's services during the time he was confined to his bed and room and was totally disabled from work on account of said injuries. And also at such a sum of money as will reasonably compensate the plaintiff for his diminished capacity to earn money, if any, and also at such sum of money as you believe from the evidence the plaintiff has necessarily expended for drugs, medicine and doctors' bills because of said injury, if you find said doctor's bill a reasonable charge for the services necessarily rendered."
This charge in terms directed the jury, not simply what to consider in assessing the damages, but to assess the damages so as to compensate appellee for the reasonable value of his "services during the time he was confined to his bed and room and was totally disabled from work on account of said injuries," and also at such sum of money as would reasonably compensate him for his "diminished capacity to earn money," without limiting the latter clause of the charge to the time succeeding the period of his confinement and total disability, which was alleged in the amended petition, on which the case was tried, to be seven months of the reasonable value of seven hundred and fifty dollars. We have no doubt the district judge meant to exclude this period and it may be that the jury placed that construction on the charge, but it must also be conceded *Page 603 that the language admitted of a different construction. In view of this and of the opinion so much in point in the late case above cited, we sustain the assignment complaining of this charge, and also the assignment complaining of that part of the charge quoted in which the sum of money expended for drugs was submitted as an item of recovery, there being no evidence that the amount claimed, seventy-five dollars, was reasonable. However, we are of opinion that these errors may be cured by remittitur of the aggregate sum of these two items, to wit, eight hundred and twenty-five dollars, and if within twenty days appellee shall file such remittitur the judgment will be reformed and affirmed accordingly, with costs of appeal taxed against him; otherwise the judgment will be reversed and the cause remanded for a new trial.
Affirmed on remittitur.
Chief Justice Conner not sitting.
Writ of error refused.