HORSES RUNNING AWAY. 329 



either case thrown upon the defendant as matter of law, but 

 that the plaintifif is to recover or not, according as they shall, 

 in the exercise of their judgment, consider the acts as in 

 themselves indicating or not indicating negligence on the 

 part of the defendant. The failure of the defendant to ofifer 

 any explanatory evidence may operate to strengthen the 

 plaintiff's case, but it must always be in a case where the act 

 done carries in itself an indication of negligence or, in other 

 words, creates a presumption of fact, not of law, that the de- 

 fendant has been guilty of negligence." "* 



But the mere fact that the horse was running away raises in 

 itself no presumption of negligence.-^^® "If a horse is running 

 away with his driver, there is nothing in the fact itself which 

 tends to show negligence in the driver or which tends to show 

 how the horse became unmanageable any more than a house 

 on fire tends to show the origin of the fire, whether accidental 

 or otherwise, and it would seem that it could as well be inferred 

 in such a case that the party residing in the house was guilty 

 of negligence in causing its destruction, in the absence of ex- 

 planatory evidence showing the contrary, as it can be inferred 

 from the mere fact that a horse is running away that the 

 driver is guilty of negligence in causing his running, in the 

 absence of proof to the contrary. If such a doctrine should 

 be established as the law, it is not easy to see to what extent 

 it might not be carried." "® The fact that the runaway horse 



'" Button V. Frink, 51 Conn. 342, 351. 



"° O'Brien v. Miller, 60 Conn. 214; McMahon v. Kelly, 9 N. Y. Suppt. 

 544; Gray v. Tompkins, 15 id. 953; Gottwald v. Bernheimer, 6 Daly 

 (N. Y.) 212. 



See Hummell v. Wester, Bright. (Pa.) 133; Cadwell v. Arnheim, 152 

 N. Y. 182. 



"° Button V. Frink, supra. The case of Unger v. 42A St. & Grand St. 

 Ferry R. Co., 51 N. Y. 497, and Strup v. Edens, 22 Wis. 432, are thus 

 commented upon: "In both these cases the court held that the fact that 

 the horses were running unattended in the public street, afforded some 

 evidence that the horses had been left either unfastened in the public 

 street or improperly and negligently secured. Manifestly this is an in- 

 ference which could not be drawn in the case at bar." 



