330 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC. 



had been left unattended may, however, show neghgence 

 prima facie so as to shift the burden of proof to the defend- 

 ant.^^^ And the fact that a team is found running away with- 

 out a driver requires some explanation, and if the driver does 

 not testify, or his absence is not accounted for, it is fair to 

 presume that no satisfactory explanation could have been 

 given. ^^* 



Where there was evidence that the horses had been used for 

 more than six weeks and were considered safe and that the 

 driver, though not well, was not unable to perform his duties, 

 there was held to be no evidence of negligence.-'^^ 



Where the plaintifif introduced evidence to show that the 

 defendant's horse had run away a year and a half before, the 

 defendant was held entitled to show that a horse which has 

 not run away for that length of time requires no more care 

 than if had never done so.^^** And in the New York Court 

 of Appeals it was held, reversing the judgment of the lower 

 court, that the fact that a pair of ordinarily gentle horses on 

 one occasion ran away through fright naturally following 

 from the conduct of third parties, does not of itself show a 

 vicious propensity, nor does the knowledge thereof render 

 the owner liable, in the absence of negligence, if he thereafter 

 used them and they again ran away. The court said : "The 

 use of horses is very general. That they may on an occasion 

 escape from the control of their driver and run away is not 

 an uncommon experience. Must the owner, after such an 

 occasion, stop using them, except under the onerous burden 

 of absolute liability, if they shall' run away a second time and 

 cause injury? It may be admitted, as suggested on the trial, 



"' Doherty v. Sweetser, 82 Hun (N. Y.) 556; Norris v. Kohler, 41 N. Y. 

 42; Pearl v. Macaulay, 6 N. Y. App. Div. 70. And see the opinion in But- 

 ton V. Frink, quoted in the last note. 



"' Maus V. Broderick (La.), 25 South. Rep. 977. 



"• Quinlan v. Sixth Ave. R. Co., 4 Daly (N. Y.) 487. 



"° Donnelly v. Fitch, 136 Mass. 558. 



The fact that a horse shies occasionally does not necessarily show neg- 

 ligence: Young V. Cowden, 98 Tenn. 577. 



