uiDiNf; AM) nuivixf; horses. 121 



nroasion to tlio drfondanrs knowledge, or that tlio 

 driver liad been Hogging them. So, too, if a 

 horse, not known to be of a vicious disposition by 

 the rider, kieks ont and injures a bystander, the 

 rider will not be responsible ; but there is negli- 

 gence, and a want of ordinary care, if a person 

 riding a \ieious horse, spurs it when close to a by- 

 stander, and the horse kicks out and injures 

 him {(i). 



Although the remarks of C.J.Erie in Uammack To make 

 V. White, above quoted, would show that, in some rider liabif 

 cases, an action is not sustainable against a person ucViH^ence 

 for riding an imruly horse in a public place of ^'"** ^® 

 resort, there may be cu-cumstances where such 

 conduct woidd render a diiver or rider liable for 

 injuries done {h) ; and the better plan is to try 

 horses in more open spots, where the oppoiiunities 

 of inflicting injury are not likely to occiu". The 

 rule in all cases is, that there must be some affirma- 

 tive proof of negligence on the part of the de- 

 fendant to suppoi-t an action. If the balance of 

 evidence is perfectly even, and fails to distinguish 

 which side, the plaintiff or defendant, has failed 

 to take proper care, the plaintiff must fail in his 

 action, as he founds his claim on the imputation 

 of negligence and fails to establish it {c). 



{a) North v. Smith, 10 C. B., N. S. 572. 



(i) Michael v. Alcstrcc, 2 Lev. 178. 



(c) Cotton V. Wood, 8 C. B., N. S. 571 ; 29 L. J., C. P. 333 ; 

 Kearnei/ v. London and Brighton Hail. Co., L. K., 5 Q. B. 411 ; 

 and 6 L. R., Q. B. 759. 



