CONTRIBUTORY NEGLIGENCE. 247 



consideration in these cases. In an Indiana case it was held 

 that where the plaintiff's horses were frightened by a steam 

 engine placed in the street, from which he did not apprehend 

 any danger when he passed, he was not guilty of contributory 

 neghgence, the court saying: "The law upon this subject is 

 well stated by Shearman and Redfield on Negligence. They 

 say, § 31 : 'Nor even where the plaintiff sees that the defend- 

 ant has been negligent, is he bound to anticipate all the perils 

 to which he may possibly be exposed by such negligence or to 

 refrain absolutely from pursuing his usual course on account 

 of risks to which he is probably exposed by the defendant's 

 fault. Some risks are taken by the most prudent men ; and 

 the plaintiff is not debarred from recovery for his injury, if 

 he has adopted the course which most prudent men would 

 take under similar circumstances.' This doctrine has often 

 been applied and is peculiarly applicable to cases like this. 

 The obstruction is seen in the street; there is room to pass it; 

 it is not known that it will cause fright and the traveller, with 

 due care, knowing the temper of his horses and having con- 

 trol of them, believing there is no danger, attempts to pass. 

 In doing this he is not guilty of negligence ; he takes the risk 

 which a prudent man would take, and nothing more. Such 

 an assumption of risk affords no excuse for the wrong-doer — 

 the party who wrongfully put the obstruction in the 

 street." ^*^ Thus, where the plaintiff was injured by her 

 horse becoming frightened at a steam roller being moved in 

 the street, the horse being very gentle and used to street cars, 

 it was held that the fact that she did not keep a sufficient 

 lookout to have seen and avoided the roller, did not make her 

 guilty of contributory negligence.^*^ Nor is the mere taking 



'"Turner v. Buchanan, 82 Ind. 147. And see Ouverson v. Grafton, 5, 

 N. D. 281; Weatherford v. Lowery (Tex. Civ. App.), 47 S. W. Rep. 34. 



'" Denver v. Peterson, 5 Colo. App. 41. 



But see Lane v. Lewiston, gi Me. 292, where one driving up to a steam 

 roller was held guilty of contributory negligence, though not notified not: 

 to use the street. 



