puted evidence, considered in its most favorable aspect for plaintiff, the capsizing of the buggy in which she was riding must either be attributed to the mismanagement and negligence of her driver, which, as between her and defendant, must be imputed to her, or, in the nature of things, it is to be regarded as an unavoidable accident, based on the great truth, promulgated centuries before street cars and automobiles came to bless, or vex, mankind, that "an horse is a vain thing for safety," even though he may be "one of the gentlest horses in Saginaw county," and the modern doctrine of discovered negligence, last clear chance, or gross negligence, has no application. This calls for a consideration of the disputed and undisputed testimony claimed to have a bearing on that proposition.

It appears, undisputed, that, on the occasion in question, plaintiff was riding with her driver, south along the west side of North Washington avenue, in the city of Saginaw, behind an old, well-broken and gentle horse, accustomed to, and never before known to be afraid of, automobiles and street cars, or their noises. They were in a single, top buggy, with the top up, "inclosed as much as a top buggy can be," with the side and back curtains on, it being a cold day, the rear curtain having a glass in it about two by four or five inches in size, and the front open, giving a clear view forward, to and past the horse. That portion of Washington avenue is 100 feet wide, 43 feet of which are paved, a double line of defendant's street car tracks running along the center; beyond the curb, on each side, the balance of the street is devoted first, to 18 or 19 feet of lawn or grass plat, beyond which is about 6 feet of sidewalk and then about 3 feet of lawn to the lot line. The distance from the outer side of the west rail of the west car track to the west curb is about 14.9 feet. As they were driving along this space about 9 feet from the track, a street car going in the same direction on the west track came up behind them and when near, but before reaching them, the motorman sounded a warning with his

gong in the usual manner. It is testified by witnesses, and not disputed except by the statement of others that they did not see it, that at the same time the skeleton, or chassis, of an automobile, covered with mud, passed rapidly by on the opposite side of the car from where plaintiff was riding, going in the opposite direction. The horse suddenly became frightened, jumped to the right, or west, and started ahead along the street on a gallop, going straight away practically on its former course, well outside of the track and near the west curb. The street was clear in front, with the exception of a single rig, consisting of a horse and Concord buggy, standing by the west curb about 400 feet away, the horse headed south and hitched to a post at the curb, the right wheel of the buggy within a foot or 18 inches of the curb. This vehicle was about 5 feet 4 inches wide at the hubs. When the running horse approached the rig standing hitched by the curb, the driver guided him to the right, onto the curb, intending, as he states, to pass by the standing rig on the grass plat to the west, fearing, if he tried to pass on the left, to the east, he would be caught by the car which was following. As he pulled the horse to the west, over the curb, the buggy collided with a hitching post, north of that at which the rig by the curb stood, and capsized. The occupants went over with the buggy, freed themselves from the top, and got up. Plaintiff testified that where she fell "was clear, just only the grass there." The car which had followed behind stopped nearly opposite where the accident occurred. The cars used by defendant overhung the rails on which they ran one foot 8 inches on each side. The extent to which plaintiff was injured was a matter of serious dispute, but, in any aspect of the case, would not be a question for the court, nor for review here.

In support of the charge of gross negligence, counsel for plaintiff urge there was abundance of evidence for the jury to find:

(1) That the horse took fright from 400 to 500 feet north from the point of injury.

(2) That the motorman, when 30 feet in the rear, saw the horse when it first took fright, and saw it running all of the time.

(3) That the motorman saw and knew the blocked condition of the street from the time the horse first began to

run.

(4) That the motorman gained 10 feet on this light driving horse, running at frightened speed and stopped his car alongside of the Bender rig hitched to the post.

(5) That the motorman, in view of these facts and his admitted knowledge of them, wantonly and recklessly pursued this frightened horse for upwards of 400 feet, even gaining 10 feet on the rig in that distance and forced the plaintiff to choose between the two perils, as explained heretofore, with a wanton and reckless disregard of the plaintiff and her rights.

The claim that plaintiff's driver was forced to choose between two perils is mathematically presented from the testimony as follows:

"The space open for plaintiff's driver to pass through with his frightened, runaway horse was 6 feet 2 inches. His buggy was 5 feet 4 inches wide. Therefore the clearance of his buggy was only 9 inches, or substantially 5 inches on each side."

This is necessarily on the assumption that the car would have been directly opposite the Concord buggy standing by the curb at the exact time plaintiff's driver attempted to pass it. He testified there might have been room even to drive past to the west of the rail "if a man would drive slow, but not in an accident like that." As his horse went down the street, it was necessary to swerve but little out of his course to pass, and, if in doing so he went upon the track at all, he needed to be there but an instant. We think the testimony of Fahnenstiel and plaintiff herself, not only fails to show that the car was there to form a "pocket," but, on the contrary, that it was entirely back of them. That the car was closely following them, and fear of it caused the driver to endeavor to go round

to the right, over the curb along the lawn, past the post he struck and trees he says were there, instead of swinging to the left on the clear, paved street, may be conceded. The vital question is whether appellant is legally responsible for the consequences of his doing so. This is not a case of a collision on the track resulting from the car not being under control. On the danger of a collision and the necessity of leaving the paved street, the strongest statements of plaintiff are as follows: That "there was nothing in the street but a buggy;" that her—

"Horse was right up to the other buggy, could not get out of the way on account of the street car. *** He had to turn the horse in order to get away from the street car. The street car was right up with us all the way down and it was right there when it tipped over. * He couldn't hold it. The car was too close and the horse got frightened all the time."

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But on further examination she also testifies that she did not see the car at all until after the accident, as follows:

"Q. You didn't see the street car that the bell rang on at all, did you, that morning, that was back of you? "A. I couldn't see it. They struck the bell and the horse got unmanageable.

* * *

"Q. Can you tell us anything at all about how far back you the car was when they rang the bell or whether it was near to you?

of

"A. I didn't look around, I don't know how far.

"Q. Well, it sounded near, didn't it?

"" 'A. Yes.

་

"Q. You knew that it was a warning to you to keep

off the track?

"A. Yes.

"Q. And that was all there was to it ?

"A. Yes; he tapped the bell three or four times, four or five times."

And along the same lines Fahnenstiel, the driver, testifies:

"The car followed me. I tried my best to hold the

horse. I seen the wagon ahead of me. When I came close to the wagon, I looked around. The car was right next to me pretty close. I couldn't have any chance to get through. It was danger for the life; so I drive the horse to go out on the other side. I pull on the other line when the horse got near the wagon. The wheel struck the hitching post. The buggy tipped over, and we both got out. The horse broke the crossbar and the thill, and broke the two lines, * and then the car kept going, gained on me. There is a glass in the hind end of my buggy.

* * *

*

"Q. How far was the street car from you when the gong rang?

"A. The first time I couldn't tell you, I wasn't close enough.

"Q. You couldn't see it at all?

"A. No, sir.

"Q. You didn't see it at any time from that time until you turned off, did you?

“A. I didn't see the car before I turned.

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said there was a little window in the back of the buggy.

"Q. How long did you spend looking out through that little opening in the back?

"A. Not very long.

"Q. When you did look back, how far behind you was the car?

"A. From two to three rods.

*

"Q. When you came up nearer the other wagon you turned on the grass plat?

"A. Yes.

"Q. You didn't attempt to drive to the left at all and cross?

"Q. The car was still back of you 50 feet all the way? "A. No, sir; the car gained on me. I looked back afterwards to find out, when I got near the other buggy.

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"Q. You knew from seeing there that there was 14 or 15 feet between the curb and the west rail?

"A. Just about that I think."

That the horse was running away is in a sense true, but this expression is relative. He had been frightened and

174 MICH.-80.