328 impounding; injuries on highways, etc. 



on public streets which the residents had improved by con- 

 structing boulevards, etc., except under the care of a com- 

 petent person and secured by a rope, etc., was held not invalid 

 as depending upon the will of the residents whether they 

 construct boulevards or not, as it was not the validity, but the 

 application of the ordinance that so depended. Whether a 

 stick or whip in the driver's hands was a "device" for controll- 

 ing, as contemplated by the ordinance, was held not to be a 

 question of fact for the jury, but of law for the court.'^^ 



86. Liability in Case of Horses Running Away — This ques- 

 tion has been partially discussed in the preceding section. 

 As a general rule it may be stated that the owner or driver 

 of a team of horses running away is not responsible for a col- 

 lision or other injury resulting therefrom unless there has 

 been fault or negligence on his part.^^* In a Connecticut 

 case it is said : "A man driving furiously along the street runs 

 into my carriage and breaks it. Here the act indicates negli- 

 gence on the part of the driver. Again, the defendant's horse 

 is running furiously along the street, dragging the shafts of 

 a carriage after him, and runs against and breaks my carriage. 

 This indicates accident only, and not negligence. It is a mere 

 matter of human presumption in each case. The common 

 judgment of mankind would see in the one case a prima facie 

 case of culpable negligence — in the other only of sheer acci- 

 dent. Now in suits brought for damages done in these cases, 

 if the plaintifif should prove only the fact of collision and the 

 defendant should offer no evidence whatever, the court 

 ought to charge the jury that the burden of proof is not in 



"' Chamberlain v. Litchfield, 56 111. App. 652. 



""Boyle V. McWilliams, 69 Conn. 201; Bennett v. Ford, 47 Ind. 264; 

 Robinson v. Simpson, 8 Houst. (Del.) 398; Brown v. Collins, 53 N. H. 

 442; Shawhan v. Clark, 24 La. Ann. 390; Hall v. Huber, 61 Mo. App. 384; 

 Short V. Bohle, 64 id^242; Gougeon v. Contant, 5 Leg. News (Can.) 182; 

 Mc Willie v. Goudron, 30 Low. Can. Jur. 44; Quebec v. Picard, Rap. Jud.- 

 Quebec, 14 C. S. 94; Hammack v. White, 11 C. B. N. S. 588; Manzoni v. 

 Douglas, 6 Q. B. D. 145; Wakeman v. Robinson, 8 Moore 63. 



