from the chicken house was through a doorway of ordinary size. On the evening before the chickens were stolen the door of the chicken house, which was hung upon hinges, was open about 15 or 18 inches, being held open by means of a fence post placed on one side thereof and a brick on the other side. The owner of the property, Mary Linton, testified that the door had been propped open in that way, "just so that the chickens and myself could pass in and out." She stated that the door was not open wide enough to permit her to walk in-she "had to take hold of the edge of the door and then pull around the corner." It appears from the evidence that the morning after the chickens were stolen the door was from one half to two thirds open, and the fence post and brick were moved out of place.

That the chicken house was entered by plaintiffs in error and chickens of the value of $15 were stolen by them is not controverted. Counsel insist, however, that the crime of burglary was not established, that there was no evidence tending to show that there was a forcible breaking and entering of the chicken house, and that the court erred in refusing to give to the jury two certain special instructions, requested by them to be given before argument. These instructions are as follows:

"If the jury find from the evidence that the building charged in the indictment to have been forcibly, feloniously, and burglariously broken and entered was a chicken house, and if the mode of ingress to and egress from was through a common sized door hung upon hinges, and that the said door was so adjusted that it was left open, or partly open, so that the owner and the chickens could pass in and out, and you further find that said door was in that condition at the time when it is claimed that it was broken and entered, as charged in the indictment, then I charge you that your verdict should be not guilty of breaking and entering said building."

it was broken and entered, then I charge you that your verdict must be not guilty of breaking and entering said building."

The objection to these instructions is that there is an assumption that the door was open sufficiently wide so that any person might pass in and out of the chicken house. This was a question for the jury, and, in view of the fact that the fence post and brick were moved, and the door was found to be from one half to two thirds open after the chickens were stolen, the jury was justified in finding that the opening was not large enough to admit plaintiffs in error, and that it was necessary to move the obstacles which had been placed against the door to hold it in position before they could gain an entrance to the house.

The court, in its general charge, properly instructed the jury that if it found from the evidence that the door of the chicken house was partly open, so that a person or persons could enter the same, and it was not necessary to remove the brick or post that had been placed against the door to hold it in that position when making an entrance, then that would not constitute a forcible breaking in the sense the statute uses the term.

The court further instructed the jury that if it found that the door was partly open, and it was necessary to remove the post or brick placed against it to hold it in the position in which it was, and that the entrance could not have been made into the building without the removal of the brick or post, and that if the brick or post was so removed by plaintiffs in error, or either of them, and an entrance made into the chicken house, then this would constitute a forcible breaking. We are of the opinion that the court charged correctly on this proposition.

Counsel rely upon the following statement in the opinion in Timmons v. State, 34 Ohio St. 426, 32 Am. Rep. 376: "The law on the point is, that if the owner leaves his doors open, or partly open, or his windows raised, or partly raised and unfastened, it will be such negligence or folly on his part as is calculated to induce or tempt a stranger to enter; and if he does so through the open door or window, or by pushing open the partly opened door, or further raising the window that is a little up, it will not be burglary."

Where a horse receives his initial fright on account of the defect or an obstruction in the street negligently left there by a municipality, the city will be held liable for the injuries resulting from contact of the rider or driver with obstructions or holes in the streets.

Meisner v. Dillon, 29 Mont. 116, 74 Pac. 130, 15 Am. Neg. Rep. 101; Emporia v. White, 74 Kan. 864, 86 Pac. 295; Ehleiter v. Milwaukee, 121 Wis. 85, 66 L.R.A. 915, 105 Am. St. Rep. 1027, 98 N. W. 934, 2 Ann. Cas. 178, 16 Am. Neg. Rep. 268; Mt. Vernon v. Hoehn, 22 Ind. App. 282, 53 N. E. 654; Vogelgesang v. St. Louis, 139 Mo. 127, 40 S. W. 653; Dillon v. Raleigh, 124

stated that it was a question of fact for the jury, and not a question of law for the court, whether or not a highway with a stone retaining wall along the side next to a steep creek bank was defective for want of a barrier of some kind to check or restrain frightened horses from going over the wall. The court also observed that the conditions being such that injury to users of the highway was reasonably and naturally to be anticipated, actual knowledge of the conditions, obtained by the township trustee by personal observation while repairing the road, constituted notice of defect.

Criticisms of the statement of facts contained in the original opinion of Sims v. Williamsburg Twp. supra, were examined and shown to be without merit in 92 Kan. 832, 141 Pac. 1132.

A case stated to govern the Sims Case, supra, is Mosier v. Butler County, 82 Kan. 708, 109 Pac. 162, where a defective railing along the approach to a bridge was held to be the proximate cause of injuries to plaintiff, sustained when his horse took fright at a pile of stone at the side of the highway and backed some distance against one of the guard rails which gave way with the result that plaintiff's vehicle, with its occupant, was thrown to the roadway a distance of about 20 feet. It was contended in this case that the defective condition of the bridge was not the proximate cause of the injury, for the reason that the horse was frightened at the pile of stone in the highway. In support of this the defendant relied upon the well-known principle that if two distinct causes are successive and unrelated in their operation, one of them must be the proximate and the other the remote cause. But the court observed that the principle had no application, because it was obvious that the two causes were related in their operation. Notwithstanding the frightening of the horse, the injury would not have resulted if the guard rail had not been defective. One reason why guard rails were necessary was the liability that horses might be frightened

Bleakmore, J., delivered the opinion of the court:

This case presents error from the district court of Muskogee county, and is an action brought by the defendant in error against the city of Muskogee for damages for personal injuries sustained by reason of being thrown from his horse on a public street of the defendant city, resulting in a judgment in his favor in the sum of $2,500, from which the city appeals. The parties will be referred to here as they appeared in the court below:

Plaintiff alleged: "That Market street is while on this part of the bridge, resulting in just such accidents.

So, where a horse took fright at a stalled automobile in the highway, and jumped over the side of a culvert, sustaining injuries, the absence of a guard rail upon the side of the culvert was in Maynard v. Westfield, 87 Vt. 532, 90 Atl. 504, held to be the proximate cause of the accident, rendering the town liable. Whether a railing at this culvert was required was a question for the jury, the determination of the question depending upon a variety of circumstances,-its length, the width of the road, the character and topography of the surroundings, the amount and kind of travel,-which were of such a character that reasonable men might differ in their views thereof. In this case both the horse plaintiff was driving and the one that was injured, which he was leading behind his carriage, were more or less afraid of automobiles; the road at the place of the accident was level and 29 feet wide, although the graveled portion was only 18 feet in width; there was plenty of room to pass the automobile, and two men with it offered their assistance, which plaintiff declined; plaintiff was thoroughly acquainted with the road and knew that there was no railing there. It was necessary for plaintiff to show that he was at the time in the exercise of due care; and this question was properly submitted to the jury. The fact that he knew all about the situation presented, and must have appreciated its dangers, did not as matter of law require him to stop there until the dangers were removed. Without forfeiting his rights as a traveler he could drive on as he did, provided the danger was not of such a character that no prudent man would encounter it; and provided, also, in doing so, he exercised the care and prudence of a prudent man. The court states that the statute giving the state control in the construction of state roads does not relieve a town, through which it passes, of its statutory liability for injuries thereon.

one of the public streets of the said city of Muskogee, and that it is, and has been at all the times herein mentioned, the duty of said city to keep its streets in a safe condition for travel. That in violation of its duty as aforesaid, on about the 25th day of April, 1910, and for a long time prior thereto, the said city knowingly permitted a large hole, or excavation, of the width of about 10 feet, of the length of about 30 feet, and of the depth of about 2 feet, to be made and to exist on said Market street beginning about 30 feet north of Fourth street, and extending thence north, which hole or excavation was, during all of said times, full of mud and bricks, and large slick rocks, which bricks and rocks had been negligently placed in said hole by the said defendant. That on or about the 25th day of April, 1910, and for a long time prior thereto, the said city of Muskogee negligently, and with the full knowledge of the existence thereof, permitted said hole so filled with mud and bricks and rocks to remain there in the open street without placing around or in the same any safe

So the absence of a railing was in McInnes v. Egremont Twp. 5 Ont. L. Rep. 713, held to be the proximate cause of an accident rendering a township liable to plaintiff for injuries sustained when he was driving across a bridge at night during a thunder storm, and a flash of lightning caused his horse to shy off the bridge, carrying him and the carriage with it into the water beneath, the thunderstorm being one of those ordinary dangers which ought to have been provided against by supplying the bridge with railings.

But the playful actions of a colt in crowding its mate off from the traveled way, and not the lack of barriers, was in Irwin v. Byron Twp. Mich., 149 N. W. 980, held to be the proximate cause of injury to plaintiff by being thrown out of his wagon at a point in the highway 210 feet from the bottom of a long steep hill, and where the roadbed was 14 feet wide for a distance of 30 feet; the court stating as a matter of law that where the wrought portion of the highway is 14 feet wide, and where one can drive with reasonable safety for 30 feet at right angles therefrom before reaching a place of danger, the highway is reasonably safe and fit for public travel without the protection of barriers. In this case the colt was not frightened at anything.

Generally, as to what injuries may be deemed to be proximately caused by the absence of a guard rail in a highway, see note to Lyons v. Watt, 18 L.R.A. (N.S.) 1135.

And in connection with the note just referred to, see Thurbron v. Dravo Contracting Co. 238 Pa. 443, 44 L.R.A. (N.S.) 699, 86 Atl. 292, Ann. Cas. 1914C, 252, where it is held that one who having contracted

guard or railing to give notice of the said excavation and to protect persons who might be traveling upon said street from falling upon or into said hole, and thereby being injured, though there was grave and evident danger of said injuries. That some of said rocks were about 18 inches long and 12 inches wide, and the same had smooth surfaces and were so placed and allowed to remain in said mudhole that horses could not safely pass over the same in said street in the usual course of travel. That the plaintiff did not know, and could not have known by reasonable diligence, that said brick and rocks were in said mudhole, nor did he know, nor could he have known by ordinary diligence, that the said Market street at that point was unsafe for travel, but all of these facts were fully known to the defendant. That on or about the 25th day of April, 1910, the plaintiff was lawfully riding a horse, upon which he was seated, along and over said Market street, at and near said mudhole, and without being able to see the danger of the same, and without negligence, and in the use of due to remove a bridge spanning a river in a municipality fails to place a proper barrier in the highway upon the river bank, is not liable for injury to horses which plunge over the enbankment when running away, after having escaped from control, since his negligence is not the proximate cause of the injury.

Both the Sims Case and the Mosier Case, supra, distinguished Eberhardt v. Glasgow Mut. Teleph. Asso. 91 Kan. 763, 139 Pac. 416. That was a decision-not strictly within the scope of this note-in which a mutual telephone company placed in the highway, practically upon the north line, a telephone pole, to which was attached a guy wire, which extended diagonally into the highway, and 4 feet and 4 inches from such pole was attached to a brace driven into the ground, the highway was 44 feet wide and the traveled portion 30 feet wide, the space north of the traveled portion in which the wire was anchored was some 6 inches higher and was not mowed, but was covered with grass and weed; the plaintiff was riding in a wagon with her husband, who was driving a span of mules, which had tried to run away at previous times; meeting an automobile some 20 rods east of the pole and wire, the mules took fright and, veering to the right of the traveled way, ran the wagon against the pole or wire,probably the latter,-throwing the plaintiff out and injuring her. It was held that the telephone company was not negligent in locating the pole where it was, and, whether negligent or not in respect to the wire, it was not liable, for the reason that the wire was not the proximate cause of the injury, or one which might reasonably have been expected to cause such injury. J. D. C.