of this we feel very certain, they did not employ these words with a view to render the policy frivolous and ineffective. And it would be both were it enforceable only as someone could be produced who had seen the thief at his work. A reasonable construction of the words would ascribe to the parties the single purpose to require something more than the mere fact of loss to entitle the assured to recovery on the policy. The fact that the clause concludes with a provision that the disappearance of the property should not be deemed direct evidence is an indication, more or less strong, that the word "direct" was not used in its

strictly technical sense. The provision might well have been omitted had the technical meaning been intended; since under no circumstances could the fact of disappearance have been regarded as direct evidence, understood in its technical sense, of the theft. An examination of the evidence shows that, while circumstantial, it was all distinctly affirmative as to the different facts testified to. Each witness testified as to what he saw for himself, and all the testimony was received without objection. The trial judge in his charge very distinctly instructed the jury that the one question they had to pass upon was whether the property had been feloniously taken. Their answer that it was so taken should have made an end of the case. The effect of a provision in a policy of insurance conditioning recovery on the production of a particular kind of evidence in contradistinction of another kind, which, under the rules of law and evidence, is equally effective and admissible to prove the particular fact in issue, suggests a question that was not raised in the court below, nor argued on the appeal. It therefore calls for no consideration

ing sharply. They did not put it in a receptacle, or confine it in any way. The sheets of paper were light, and were naturally liable to be blown about the street by even a light breeze, and naturally and inevitably tended to excite and frighten not only nervous horses and mules, but even quiet and steady ones. The plaintiff, a capable driver, was driving two reasonably wellbroken, steady, and roadworthy horses along the street. The wind blew some of the paper under the horses and against their legs, frightening them and causing them to petition was not subject to general derun away and injure him. Held that such murrer.

(a) Where it was also alleged that there existed in a city an ordinance requiring the proprietor of each business house to keep a covered garbage can outside of his place of business, and to place in it all refuse, garbage, and trash from such place, to be called trash and paper were placed on and near for by the proper city officers, and that the sidewalk by the defendants on the day of the injury, without being confined in such receptacle, and in violation of the ordinance, this did not render the entire petition demurrable on the ground that the ordinance was a sanitary measure, and was not enacted for the purpose of preventing horses from being frightened. The ordinance on its face, as set out in the petition, appears to have been enacted as a sanitary measure; and, so considered, its violation would not be negligence per se as to persons driving along the highway. But, though not negligence per se relatively to the plaintiff because in violation of the ordinance, the acts done might be negligence as

a matter of fact.

Proximate cause - fright of horses rubbish in highway wind. 2. There was no merit in the ground of demurrer which raised the contention that the violation of the ordinance was not the proximate cause of the injury, but that a separate and independent intervening cause, the blowing of the wind, was the proximate cause, coupled with the fact that the horses became frightened, and that this was the act of God, for which the defendants were not responsible:

(a) If the acts of the defendants constituted negligence with reference to the plaintiff, without regard to whether a violation of the ordinance was negligence per se, the blowing of the wind, which was known, or might naturally be expected, was not an independent intervening cause, so as to prevent the negligence of the defendants from being the proximate cause of the injury.

(b) There is nothing in the petition to show that there was any unforeseen or sudden wind of such a character as to come

Note. - Liability for frightening horses by paper or other objects liable to be set in motion by wind.

Generally as to liability of municipality, for injuries caused by horse becoming

in force in the city the following ordinance:

Statement by Lumpkin, J.:

Grady Bowen filed his petition for damages against the Smith-Hall Grocery Company. The petition as amended alleged, in substance, as follows: The Smith-Hall Grocery Company is a partnership doing business in the city of Dalton. Its storehouse and place of business fronted on Hamilton street, the principal business street of the city, upon which at all times of the day there was a large amount of travel by pedestrians and all kinds of vehicles. At the

frightened at object in highway, see note to Bowes v. Boston, 15 L.R.A. 365; and generally as to liability for placing near highway object calculated to frighten horses, see note to Davis v. Pennsylvania R. Co. 12 L.R.A. (N.S.) 1152.

As to liability for discharge of steam near street or highway so as to frighten horse, see note to Mt. Cooperage Co. v. Page, 23 L.R.A. (N.S.) 946. As to duty to prevent escape of steam from engine in highway so as to frighten horses, see note to Lane Bros. Co. v. Barnard, 31 L.R.A. (N.S.) 1209.

Annotation of other questions arising from injuries due to fright of horses may be found by consulting the Index to L.R.A. Notes under the title "Horses."

The only case other than BOWEN V. SMITHHALL GROCERY Co. involving the frightening of a horse by paper blown from a rubbish heap by the wind is McClure v. Feldmann, 184 Mo. 710, 84 S. W. 16. In that case a judgment for defendant was affirmed, the court holding that where the cause of action, as stated in the complaint, specifically charged that the rubbish pile of paper and straw which frightened plaintiff's horses was placed on the highway by defendant, instructions were properly refused wherein plaintiff sought a recovery on the ground of a different character of negligence; namely, that the rubbish was placed on defendant's premises and negligently allowed to be blown by the wind into the highway.

The question of liability in this class of cases depends upon whether the object was calculated to frighten horses of ordinary gentleness; and whether an object in a highway is in its nature calculated to frighten horses of ordinary gentleness is generally a question for the jury to determine.

"The proprietor of each business house must keep a covered garbage can outside of his place of business, in which must be placed all refuse, garbage, and trash from said place of business, to be called for by the proper city officers."

On the day of the injury the defendants through their employees placed upon and near to the street and sidewalk thereof, in front of their place of business, a large amount of trash and loose sheets of paper, without putting it in any receptacle or confining it in any way. The wind was blowing sharply. The pieces of paper were loose and light, and were naturally and easily liable to be blown up and down or across the street by even a light breeze, and, if so blown, the rattling caused by them and their moving toward horses and mules passing along the street and striking them would naturally and inevitably tend to excite and frighten not only excitable and nervous horses and mules, but even quiet and steady ones, and cause them to start, rear, plunge,

Thus, whether dust and shavings blown from a mill over a wall on to the highway were objects calculated to frighten a horse of ordinary gentleness was in Rodgers v. Harper & Moore, 170 Ala. 647, 54 So. 199, 1 N. C. C. A. 78, held a question for the jury.

So, whether a pile of rubbish was of a character calculated to frighten horses, and whether it had remained in a street so long a time that the village authorities should have taken notice of its existence, were held in Barr v. Bainbridge, 42 App. Div. 628, 59 N. Y. Supp. 132, questions of fact for the jury.

A hay cap consisting of white cloth tied by the corners to stakes in the ground, so that it is moved by the wind, may constitute a nuisance for which the party maintaining it will be liable for the frightening of a horse on a highway when it is placed within the limits of the highway, where it is naturally calculated to frighten a horse of ordinary gentleness. Lynn v. Hooper, 93 Me. 46, 47 L.R.A. 752, 44 Atl. 127, 6 Am. Neg. Rep. 535.

So (as stated in the syllabus) where a person with a wagon loaded with bicycles, covered with several flags flying and waving from one side to the other, and thereby making such a display, while drawing such wagon as an advertising medium through the principal streets of a populous city, as to frighten a horse of ordinary gentleness, and cause it to run away in such street, whereby the property of another is injured and damaged, the finding of the jury upon the question of the negligence of such person drawing such wagon will not be disturbed. Jones v. Snow, 56 Minn. 214, 57 N. W. 478.

Where horses are frightened by an object

and run away. The plaintiff was driving along the street in a buggy drawn by two horses, reasonably well broken, steady, and roadworthy, and he was capable of driving and handling horses. When about 50 to 75 yards from the pile of trash and paper, the wind caught up and blew some sheets directly under his horses. The sudden rattling and fluttering of the papers beating upon the legs of the horses excited them, and, in spite of all that the plaintiff could do, they got beyond his control and ran away, overturning the vehicle, breaking the tongue out of it, and turning it over. The plaintiff was thrown violently to the ground and received serious personal injuries which are permanent. The violation of the city ordinance was negligence per se on the part of the defendants. Without regard to the ordinance, the defendants were guilty of negligence in placing the trash and paper upon the street, because it naturally and reasonably tended to cause the injuries complained of, and did cause them. The plaintiff was without fault or any lack of ordinary care in the matter.

in the streets of a town or city, having a tendency to frighten horses of ordinary gentleness, if the object was not placed in the street by the corporation or by anyone in privity with it, the corporation is not liable for the injury resulting unless it had notice thereof for a sufficient length of time to have enabled it, by the exercise of reasonable diligence, to remove the object; but this notice may be either actual or implied, and notice is implied where a sufficient length of time has elapsed between the placing of the object or obstruction and the accident for the corporation, using reasonable diligence, to have removed it, or when it was so placed and its nature so notorious that the corporation should have known it. Thus, in Falmouth v. Woods, 16 Ky. L. Rep. 317, a town is held to be liable for injuries resulting from the frightening of horses by a canvas sign which the town had permitted to be stretched across one of its principal streets, the sign being so hung that when blown by the wind it made a noise calculated to, and which did on several occasions, frighten passing horses; these facts being so notorious as to cause general comment.

So, a village was held liable in Champlain v. Penn Yan, 34 Hun, 33, affirmed without opinion in 102 N. Y. 680, for injuries sustained as a consequence of one's horse becoming frightened at a large advertising banner strung across a street. The court said: "We are unable to discover any sensible reason for holding that an object permanently suspended directly over the traveled part of a highway, although fastened to supports outside of the limits of the same, is not an obstruction to travel, if it naturally tends to frighten horses of ordinary gentleness. Such an object drives travel from the street over which it is suspended, because

The defendants demurred on the following grounds: (1) Because the petition set forth no cause of action; (2) because the ordinance referred to was enacted as a sanitary measure, and not to prevent horses driven along the street from becoming frightened; (3) because the facts as alleged do not constitute such negligence as the defendants, in the exercise of ordinary care, might have reasonably anticipated would result in the plaintiff's injuries; (4) because the violation of the ordinance was not the proximate cause of the plaintiff's inThe blowing of the wind, which juries. was an act of God, coupled with the horses becoming frightened, was the proximate cause, and for this the defendants were not liable. The judge sustained the demurrer and dismissed the case. The plaintiff excepted.

Messrs. J. E. Rosser and W. M. Henry for plaintiff in error.

Messrs. Maddox, McCamy, & Shumate for defendants in error.

discreet persons will avoid the risk and danger incident to attempt to pass under the same. It endangers travel, and makes it perilous to all travelers riding in conveyances drawn by horses. Such an object placed in a place so conspicuous as this banner was, within the plain sight of horses, is to be distinguished from objects which are suspended over sidewalks and fastened to the face of a building, like a sign or a bracket fastened in the face of a building, on which traders display their goods, or a show case standing in front of a store."

Where plaintiff was injured by his horse taking fright at the noise of a railroadcrossing sign caused to rattle or creak by a sudden gust of wind, the railroad company was, in Thompson v. New York C. & H. R. R. Co. 164 App. Div. 117, 149 N. Y. Supp. 611, held not liable, being not bound, in the exercise of ordinary care, to anticipate such a result.

So, the owner of premises near a railroad crossing was held not liable in O'Sullivan v. Knox, 81 App. Div. 438, 80 N. Y. Supp. 848, affirmed in 178 N. Y. 565, 70 N. E. 1104, where plaintiff was injured by her horse becoming frightened by the falling of a large sign blown down by the wind; the court stating that "with a signboard of these moderate dimensions, with 85 feet of railroad lands between his own and the highway, and with his structure 15 feet in from his line, he [owner] filled the measure of that reasonable care imposed upon him, and commensurate with any probable or conceivable danger. He could not forecast the uncommon occurrences which resulted in the injuries to the plaintiff, and hence they are not within the compass of the obligation he owed to her." J. D. C.