HORSES UNGUARDKD IN HIGHWAY. 325 



even tend to prove that the appellant's driver was guilty of 

 such negligence as renders them liable for an injury resulting 

 from their team having been left standing upon the streets 

 in violation of the ordinance." "* But in other States the 

 failure to comply with such a provision, whereby the animals 

 run away and do damage, has been held to be negligence 

 per se?^ 



There are many circumstances, however, that will render 

 the owner liable, as where the horse is high-spirited or ad- 

 dicted to running away,®^ or the place is a crowded city 

 street,^* or there has been negligence in the hitching or guard- 



But the leaving the animal unhitched or unattended need 

 not be the immediate cause of the injury : the owner was held 



" Dolfinger v. Fishback, 12 Bush (Ky.) 474, where it was also held that 

 an ordinance proliibiting the hitching of animals to shade-trees was made 

 competent evidence for the defendant by the plaintiff's proving that there 

 were shade-trees near where the team was left. 



" Siemers v. Eisen, 54 Cal. 418; Bott v. Pratt, 33 Minn. 323. 



" Mcintosh V. Waddell, 24 Rettie (Sc. Ct. Sess.) 80. 



It is for the jury to determine whether it was negligence to leave the 

 team unhitched where the evidence showed it had run away once before: 

 Doyle V. Detroit Omnib. Line Co., 105 Mich. 195. See Benoit v. Troy 

 & L. R. Co., 154 N. Y, 223; Donnelly v. Fitch, 136 Mass. 558; cited in 

 § 86, infra. 



'" Phillips V. De Wald, 79 Ga. 732, where it is said: "Every horse what- 

 ever, no matter how gentle and amiable, must be properly attended or 

 secured in the crowded business streets of a city, when there by the act 

 of the owner and subject to his control. The instincts common to the 

 species render this necessary, and of these instincts every owner must be 

 presumed to have notice." 



See, also, Pierce v. Conners, 20 Colo. 178; Williams v. Koehler, 58 N. Y. 

 Suppt. 863: Guimond v. Montreal, 4 Rev. Leg. (Can.) 285; McEwan v. 

 Cuthill, 25 Rettie (Sc. Ct. Sess.) 57. 



"Frazer v. Kimler, 2 Hun (N. Y.) 514; Wagner v. Goldsmith, 78 Ind. 

 517; Wasmuth v. Butler, 86 Hun (N. Y.) i. 



And see Rumsey v. Nelson, 58 Vt. 590, where the question was held 

 not to be whether the defendant knew that the horse had a propensity 

 to break his fastenings but whether his servant, under the circumstances, 

 used the care of a prudent man in hitching. 



