is a vacancy as to him, and comes within the meaning of the language used. If, in any case, the words 'vacant' or 'vacancy' can be applied to the case of the expiration of the term of office of an individual officer, these words are clearly broad enough to cover that case. See ante, 181.

CONTRACTS TO "SATISFACTION.”

HERE are a number of interesting cases of con

THERE are a nu rendition of service or the manu

facture of articles "to the satisfaction" of the re

cipient. The question has been discussed whether the power of pronouncing his dissatisfaction is arbitrary in the party, or exists only where in reason and good conscience he may be dissatisfied.

In Zaleski v. Clark, 44 Conn. 218; S. C., 26 Am. Rep. 446, a sculptor executed a bust of the defendant's deceased husband, under an agreement that she should not be bound to accept it unless she was satisfied with it. The bust was artistically executed, was a correct copy of the photograph furnished by defendant, and was a good likeness; but owing solely to want of color in the material, lacked lifelike expression. The defendant alleged that she was not satisfied with it, and refused to take it. Held, that no action would lie for the price. Counsel addressed the following very ingenious and scholarly argument to the court:

"The most that can be claimed is that the contract called for a bust which should be satisfactory as far as the character of the thing ordered and the nature of the material to be worked upon would admit. That it was satisfactory in this respect the court expressly finds. The satisfaction to be met was a reasonable satisfaction, not a mere whim or caprice. That the bust when finished lacked the attractions of life and color, was no more a legal ground for dissatisfaction on the part of the defendant, who had ordered a bust to be made out of plaster, than the absence of heat and upholstery would justify a similar dissatisfaction on the part of one who had ordered from a mason-builder the four walls of a house, and on completion the residence a cheerless one. Such dissatisfaction in reference to works of art, certainly, is too much of the dreamy and poetic order to be properly the subject of legal recognition. In this poetic sense, as distinguished from the legal, it may not be improper to recognize it, and to give the defendant our sympathy, as was the case with Pygmalion, of mythological renown, who, a sculptor himself, was thus afflicted, and who, mourning over the one imperfection of his masterpiece, is represented by a modern dramatist as groaning out his dissatisfaction in this wise:

'No, the thing is cold, dull stone,

Shaped to a certain form, but still dull stone,
The lifeless, senseless mockery of life.
The gods make life, the sculptor only death;
The merest cutthroat, when he plies his trade,
Makes better death than I with all my skill.'

In consideration of the fact that the only fault found with the bust was that it failed of the expression of the deceased during his life,' and further

that this failure of expression was due solely 'to the nature of a bust as a dead white model,' it is submitted that the dissatisfaction of this defendant and that of the mythological sculptor are identical." It is highly probable, however, that even if the court could have animated the bust, as Venus animated the statue of Pygmalion's woman, the widow would still have been dissatisfied with such a small fraction of her late lamented lord. But the court made short work of the sculptor. They said: "In this case the plaintiff undertook to make a bust which should be satisfactory to the defendant. The case shows that she was not satisfied with it.

The plaintiff has not yet then fulfilled his contract. It is not enough to say that she ought to be satisfied with it, and that her dissatisfaction is unreasonable. She, and not the court, is entitled to judge of that. The contract was not to make one that she ought to be satisfied with, but to make one that she would be satisfied with. Nor is it sufficient to say that the bust was the very best thing of the kind that could possibly be produced. Such an article might not be satisfactory to the defendant, while one of inferior workmanship might be entirely satisfactory. A contract to produce a bust perfect in every respect, and one with which the defendant ought to be satisfied, is one thing; an undertaking to make one with which she will be satisfied is quite another. The former can only be determined by experts, or those whose education and habits of life qualify them to judge of such matters. The latter can only be determined by the defendant herself. It may have been unwise in the defendant to make such a con

tract, but having made it he is bound by it." (Why did not the sculptor paint the bust, as the English sculptor Gibson was wont to do, and as the ancient Grecks probably did?) It rejoices us to be able to say, that the plaintiff on the new trial which the court granted got judgment, and that judgment was affirmed, 45 Conn. 397. The same testimony was introduced as on the first trial, and why the result was the converse in the appellate court, passes our comprehension. Perhaps the ingenious counsel, Mr. T. C. Ingersoll, can inform us.

The court founded this on Brown v. Foster, 113 Mass. 136; S. C., 18 Am. Rep. 463, where the plaintiff agreed to make the defendant a satisfactory suit of clothes, and the defendant having returned the suit as unsatisfactory, it was held that no action would lie for the price. The court there said: "Even if the articles furnished by him were such that the other party ought to have been satisfied with them, it was yet in the power of the other to reject them as unsatisfactory. It is not for any one else to decide whether a refusal to accept is or is not reasonable, when the contract permits the defendant to decide himself whether the articles furnished are to his satisfaction. Although the compensation of the plaintiff for valuable service and materials may thus be dependent upon the caprice of another who unreasonably refuses to accept the articles manufactured, yet he cannot be relieved from the contract into which he has voluntarily entered."

In Tyler v. Ames, 6 Lans. 280, it was held that a

contract to employ an agent for a year, if he “could fill the place satisfactorily," may be terminated by the employer when in his judgment the agent fails to meet that requirement of the contract. The court said: "The word 'satisfactorily' refers to the mental condition of the employer, and not the mental condition of a court or jury. The right of determining whether the plaintiff filled the place of agent satisfactorily must, from the nature and necessity of the case, belong to the person whose interests are directly affected by the plaintiff's action. To require the employer, under such a contract, to prove that plaintiff did not fill the place satisfactorily would be to require of him an impossibility, unless his own oath was taken as to his mental status on the subject. If he is required to prove facts and circumstances that would justify him in feeling dissatisfied with the manner plaintiff filled his office, it would be annulling this clause of the contract, as without such a clause he would have the right to dismiss the plaintiff if he did not properly perform his duties. The question is quite similar to the one that is sometimes raised on chattel mortgages, containing a clause authorizing the mortgagee to take the property and sell it when he deems himself insecure. The weight of authority is in favor of the right of the mortgagor to take and sell the property without any obligation to prove that the facts and circumstances surrounding the parties justified him in deeming himself insecure. Huggans v. Fryer, 1 Lans. 276; Chadwick v. Lamb, 29 Barb. 518; Rich v. Milk, 20 id. 616; Hall v. Sampson, 19 How. Pr. 481; Farrell v. Hildreth, 38 Barb. 178." To the same effect on these last citations are Huebner v. Koebke, 42 Wis. 319; Cline v. Libby, 46 id. 123.

In McCarren v. McNulty, 7 Gray, 139, the same doctrine was held as to a contract to make a bookcase, of a certain kind and of certain dimensions, "in a good, strong, and workmanlike manner, to the satisfaction" of one of the defendants. The court said: "It may be that the plaintiff was injudicious or indiscreet in undertaking to labor or furnish materials for a compensation the payment of which was made dependent upon a contingency so hazardous or doubtful as the approval or satisfaction of a party particularly in interest. But of that he was the sole judge. Against the consequences resulting from his own bargain the law can afford him no relief. Having voluntarily assumed the obligations and the risk of the contract, his legal rights are to be ascertained and determined solely according to its provisions."

family; for the party by the express terms of the contract has made his own feelings the sole judge of the matter. Contentment and satisfaction with a man's position in a particular family is a matter which the law will not assume to determine for him. Neither will it do the converse, and say he had no cause to be discontented and dissatisfied, and therefore he cannot be regarded as dissatisfied." There are a few cases that look in the opposite direction:

In Wetterwulgh v. Knickerbocker Building Association, 2 Bosw. 381, the defendant's articles provided that in case any member, by sickness, removal or misfortune, become unable to pay his dues, he might withdraw, "and in case the board of trustees are satisfied as to the grounds of withdrawal, the whole amount of subscription paid by the party into the association shall be returned." Held, that the plaintiff was entitled to withdraw and a return of his money if he showed such facts as in law and good conscience ought to have satisfied the trustees.

In Manufacturing Company v. Brush, 43 Vt. 528, the action was founded upon a contract between the plaintiff and the defendant, by which the defendant was to take a sugar evaporator of the plaintiff upon trial, and pay for it if he liked it, the plaintiff to take it back if he did not like it. The court said: "The trial upon which the defendant took the evaporator was to be had for the purpose of ascertaining whether the defendant liked it or not, and not for the purpose of ascertaining whether it was equal to the plaintiff's recommendations of it or not. The trial was to be had solely with reference to the defendant's wishes in respect to the machine for such uses as he might find he could make of it and not with any reference to any usefulness of it for other persons. To this trial the defendant was bound to bring honesty of purpose; any thing short of that would not determine his wishes, fairly, but only his willful caprice or his dishonorable design. To it he was not bound to bring any more capacity or judgment than he had, for he was only to ascertain his own wishes, and these could be measured by no judgment or capacity but his own. He was not to determine what would be the wishes of ordinary persons under like circumstances, and therefore was not bound to use the care and skill of ordinary persons in making the determination. duty to the evaporator, as custodian of it, is not now here in question, but only his duty and liability under the contract concerning it. This duty was the trial of it, and payment for it, if on trial of it he liked it. To the trial the charge of the court required him to bring honesty of purpose and judgment according to his capacity to ascertain his own wishes, and refused to require the care and skill of ordinary persons in making that determination. This seems to have been correct."

Ilis

court, that the defendant had no right to say, arbitrarily and without cause, that he was dissatisfied, and would not pay for the pans, was sensible and sound. The pans were made with appliances to graduate the temperature of the milk by running water; and in that, consisted their excellence. Without these, they were like other pans, save their greater capacity. All this the defendant well knew. If a man orders a garment made of given material and fashion, and promises to pay if satisfied, he cannot say that the garment, in material and manufacture, is according to the order, and yet refuse to test the fit or pay for it. He must act honestly, and in accordance with the reasonable expectations of the seller, as implied from the contract, its subjectmatter and surrounding circumstances. His dissatisfaction must be actual, not feigned; real, not merely pretended. Manufacturing Co. v. Brush, 43 Vt. 528."

THE JURY.

IF in your judgment the correspondence in the recent issues of your paper on "Coercion of the Jury" has not received the finishing stroke, I submit as follows:

About the year 927, Anno Reguæ Regis Hachelston, 2, the plaintiff and defendant used to feed the jury (Compurgators-q. v., infra) impaneled, hence the origin of the common law denying sustenance to the jury after the hearing of the evidence.

I am cognizant of the fact that the statements in the above paragraph, referring to the word "jury," are at first view a bone for contention. To anticipate, as well as to check controversia scholasticia, I add an abstract of the origin of trial by jury in England.

There have been many learned controversies upon the question, whether the trial by jury was in use among the Saxons. For the affirmative and negative opinions on this question, vide the following authorities: Spelman's Gloss. voc. Jurata; Hicks' Dissertatory Epistle on the Saxon Literature; Preface to Wilkins' Lesges Anglo-Saxonica; Brady's History of England; Hallam's Middle Ages, cap. 8; Reeve's History of English Law, part I, ch. 1; Forsyth's Trial by Jury; Sir F. Palgrave's History of England, Saxon Period: Essays on Anglo-Saxon Law, published by Little, Brown & Co., Boston; Justice Stephens' General View of the Criminal Law of England, Cap. II.

The general opinion that the venerable franchise descended to us unchanged from the days of Alfred is now exploded, and rests in peace, side by side with poor old John Doe, Richard Roe, and the doctrines about the common law reposing in the "bosom of the judges," or "in the clouds," or "being the perfection

of reason.

It is remarkable, in making a survey of English history, to find how uniformly the minds of the writers have confounded the word "jury" with that of compurgators, suitors of court, or certain assessors of the judges. Glanville describes the trial by compurgators; Selden was of the opinion that it was the legem terræ in Magna Charta. The trial by compurgators received its death blow when it was settled that wager of law was not allowable in Exchequer process, but the question remained for a long time a mooted one. Actions on the case, granted by the statute of 11 Ed. I., cap. 24, were, in the days of Fortescue, gradually replacing the action of wager of law. The trial by jury did not completely supersede that of wager of law, until the action on the case upon assumpsit had become a remedy suitable to all laws of debt on simple

contract; detinue had been displaced by trover; and the action of account had become a ward of the Court of Chancery.

There are some instances of very singular and mixed trials in the earlier books, and the reader is left to his own judgment in deciding whether the trials were by witnesses or by jury. The leading maxim of AngloSaxon jurisprudence was, "that the best guaranty of a man's obedience to the government was to be sought in the confidence of his neighbors." The laws of Alfred state that, "If any one accuse a king's thane of homicide, if he dare to purge himself, let him do it along with twelve king's thanes." "If any one accuse a thane of less rank than a king's thane, let him purge himself along with eleven of his equals, and one king's thane. These twelve or eleven thanes, compurgators, the defendant having been admonished by the judges of the nature and danger of a false oath, he, defendant, declares that he does not owe the sum, or any penny thereof, in manner or form as the said plaintiff hath declared against him, avow upon their oaths, that they believe in their conscience that he saith truth; that himself must be sworn de fidelitate, aud the eleven de credulitate." Lambarde, in his Archainomia, mentions that it was a common occurrence during the Saxon heptarchy to appoint a "jury" of six Welsh and six Anglo-Saxon freemen to try causes between Welshmen and Englishmen of property, who are responsible with their whole estate, real and personal, for false verdicts.

Seeds of the trial by jury are to be found in a law of Ethelred II., "by which a court was to be held in every wapentake, where a sheriff and twelve principal thanes should swear that they would neither acquit any criminal nor convict an innocent person.' Mr. Hallam rightly considers that these thanes were permanent assessors to the sheriff, like the Scabius, mentioned in the early law of France; they are distinguishable, however, from the compurgators mentioned above.

Among the causes that illustrate a few of the mixed trials, the first of any importance is the controversy relating to the lands of the Convent of Romsey, which was referred by the court to thirty-six recognitors, equally chosen by both sides; also the cases of Sir T. Berkeley, in the reign of Edward III; Alice Pius, in that of Richard II; (Reeves' Edward III., Richard II.); Abbot Strata Marcella, 9 Coke; the cause of which Gundulph, Bishop of Rochester, was a party, tried before the Bishop Baieux, during the reign of William I., is considered by many D. C. F.'s to be the first satisfactory trial by jury in England.

Writs of right by the Grand Assizes were introduced during the reign of William II.

The trial by twelve men, "duodecemvirate judicium,” superseded the trial by suitors, during the reign of Henry II. Judicium parium," the expression used in Magna Charta, has received different interpretations; by some writers it is said that it refers to a jury; others, that it means the trial by pares curiæ; Coke, 2 inst. 49, says that "judicium" is used instead of "veredictum," because it was intended to designate proceedings before Lords of Parliament. Glouville, Bracton and the Year Books (ed. translated by Howard), mention trial "per pares," in contradistinction to trial "per pais."

"Trial by jury," says Sir F. Palgrave, "according to the old English law, was a proceeding essentially different from the modern tribunal bearing the same name, by which it has been replaced. Jurymen in the present day are triers of the issue; they are individuals who found their opinion upon the evidence, whether oral or written, that has been adduced before them; and the verdict delivered by them is the declaration of the judgment they have formed. But the ancient jury were not impaneled to look into the credibility of

the evidence; the question was not discussed and argued before them; they, the jurymen, were the witnesses themselves, and the verdict was substantially the examination of these witnesses, who of their own knowledge and without the aid of testimony, afforded their evidence respecting the facts in question to the best of their belief. In its primitive form, a trial by jury was therefore only a trial by witnesses, and jurymen were distinguished from any other witnesses only by customs which imposed upon them the obligation of an oath and regulated their number.'

This abstract, when one considers that "this field is so spacious that it were easy for a man to lose himself in it," is a beggarly account of the origin of the trial by "twelve good men in a box." Meager as it is, the authorities cited may serve as a guide to those readers of the LAW JOURNAL who may wish to give this subject a thorough investigation.

CHARLES M. CAMPBELL.

DENVER, COL., Feb. 14, 1880.

INJURIES BY DOMESTIC ANIMALS. RHODE ISLAND SUPREME COURT, FEBRUARY 21, 1880.

FALLON V. O'BRIEN.

Defendant's horse escaped from an inclosure where it was rightfully kept by A. and strayed on to a highway where it injured plaintiff.

In an action to recover damages for the injury received, held, (1) that the cause of action rested upon negligence on the part of defendant; and, (2) that if the horse escaped without negligenco on the part of defendant, and if defendant exercised due diligence in pursuing and recapturing it, plaintiff could not recover. Held, also, that the presence of the horse loose and unattended in the highway, in violation of the statute, was prima facie negligence on the part of defendant. EFENDANT'S petition for a new trial. The opinion states the facts.

DE

Ziba O. Slocum, for plaintiff.

Charles E. Gorman, for defendant.

DURFEE, C. J. This is trespass to recover damages for an injury received by the plaintiff, who is a child of tender years, while playing in one of the streets of the city of Providence, in consequence of being kicked by the defendant's horse, which was astray in the street. The defendant, in defense, submitted testimony to show that it was not his horse, but another's that kicked the plaintiff, aud also to show that he kept his horse, with his cows, in an inclosure, and that, though they escaped from it on the day the plaintiff was injured, and were loose in the streets, in the neighborhood, about the time the plaintiff was injured, he immediately pursued them and drove them back. He also submitted testimony to show that his horse was gentle and never known to kick. He requested the court to charge the jury, that if they found he had no knowledge that his horse had a propensity to kick, either from viciousness or playfulness, he would not be liable. The court refused to charge as requested, but charged that to kick was a natural propensity of a horse, and the defendant was bound to prevent his following it. The defendant further requested the court to charge the jury that if they found he cared for his horse as a careful person would have cared for it, and that without negligence on his part the horse escaped, and straying, did the injury complained of without trespassing on the plaintiff's property, the plaintiff could not recover. The court refused so to charge, but did charge that the defendant was bound to keep his horse from straying, and that if his horse, while astray, kicked the plaintiff, it being natural to a horse to kick, the defendant would be liable for the injury. The jury having found a verdict for the

plaintiff, the defendant petitions for a new trial for error in the instructions.

The cases which directly touch the questions presented are few and somewhat discordant. In Goodman v. Gay, 15 Penn. St. 188, it was decided that the owner of a horse, who voluntarily permits it to go at large in the streets of a populous city, is answerable to an individual who is kicked by it, without proof that he know it was vicious. The ground of the decision was that all horses are more or less dangerous when turned loose in the frequented streets of a city, and that all men know it, and that, therefore, for the owner to permit his horse to go at large in such a street was negligence for which the injured person was entitled to recover, without proof that the owner knew the horse was vicious. In Dickson v. McCoy, 39 N. Y. 400, the plaintiff, a child of ten years, was passing along the sidewalk of a populous street in front of the defendant's stable, when the defendant's horse came out, loose and unattended, and, in passing, kicked the plaintiff in the face. The proof as to the disposition of the horse was that it was young and playful, but not vicious. The court left it to the jury to find, under the evidence, whether the defendant was or was not guilty of negligence in permitting the horse to be at large. The jury found for the plaintiff, and their verdict was sustained. In Holden v. Shattuck, 34 Vt. 336, the defendant's horse, being at large, in the highway, excited the plaintiff's horse to run and injure itself, the harness and the wagon. In this case the highway was a country road. The court held that the defendant had a right, under the law in Vermont, to have his horse in the highway depasturing the roadside on his own land, and that to entitle the plaintiff to recover, it was not enough that the horse was there with the knowledge of the defendant, but that, to subject the defendant to liability, it should be made to appear that the circumstances and occasion, or that the character and habits of the animal were such as to show carelessness on the part of the defendant in reference to the convenience and safety of travellers on the highway. In Cox v. Burbidge, 13 C. B. (N. S.) 430, also in 11 W. R. 435, a child, lawfully on the highway, was kicked by the defendant's horse, grazing there. The action was for negligence in keeping the horse. No scienter was alleged or proved. On the contrary, it was in proof that the horse was a quiet animal. There was no express evidence that the horse was in the highway through the defendant's neglect. The court held that the action would not lie without an allegation, supported by proof, that the defendant knew that his horse was liable to kick.

It will be seen from this citation of cases that the law is not very clearly settled. We agree with the Pennsylvania and New York cases, that a horse, even though he is not vicious, is a dangerous animal to be at large in the frequented streets of a city. We think, however, that the learned judge who tried this case with the jury went too far when he instructed the jury that the defendant, if his horse caused the injury, was absolutely liable for it, without regard to whether the horse's presence in the highway was attributable to his negligence or not. In the American cases cited, it seems to be recognized that it is the negligence of the owner of the animal straying in the highway which renders him liable for the injury inflicted by it; and that if he is guilty of no negligence, he is subject to no liability. In the case at bar, the defendant had an undoubted right to keep his horse in the inclosure near the highway. He had as much right to have it there inclosed as he had to drive it in the streets harnessed. But if, while driving it harnessed, it had escaped from his control without negligence on his part, and, running away, had injured the plaintiff, it is perfectly well settled that he would not be liable for the injury. We do not see why he should be any the more liable be

cause the horse, instead of escaping from his control, escaped from an inclosure where he was rightfully kept, unless there was some want of diligence in pursuing and recapturing it. We think the jury should have been instructed that, if the defendant was not negligent in either of these respects, the action was not maintainable; though, in view of the law of the State, Gen. Stat. R. I.,cap. 96, the jury should also have been instructed that the presence of the horse in the street, going loose and unattended, was prima facie evidence of negligence, which, unless rebutted, would entitle the plaintiff to recover.

The judge who held the jury trial doubtless ruled as he did in analogy to the rule of the common law in regard to the straying of domestic animals from the land of their owner into the land of another person. In such a case the owner is liable for the injury, whether he has been negligent or not. But in such a case the trespass to the land is the gist of the action, any other injury being regarded as aggravation. The same law does not apply where the injury is merely personal. Cox v. Burbidge, 13 C. B. (N. S. 430.)

The defendant makes the point that the proper remedy for the injury complained of by the plaintiff is case, not trespass. The case is not formally before us on this point, but it may save unnecessary expense for us to express our opinion in regard to it. We think it is clear that, unless the defendant intentionally permitted his horse to be at large in the street, trespass does not lie; for otherwise the injury, if it resulted from the defendant's negligence, was a consequential result of it, for which case is the proper remedy. 1 Chitty's Pleading, *140. Case was the remedy resorted to in the cases previously cited, except that from New York, where the common-law distinctions have been abolished. Petition granted.

NEGLIGENCE IN DRIVING IN PUBLIC STREET.

PENNSYLVANIA SUPREME COURT, MARCH 8, 1880.

GOSHORN V. SMITH.

A number of cars on a street railroad on the right-hand track in the direction they were going, were blocked by reason of the baulking of a horse on the forward car: A, the plaintiff below, for the purpose of inducing the horses on this car to start, took hold of the head of the horse on the left side. The horses suddenly started and to avoid injury by them, A stepped back toward the left-hand track. B, the defendant below, was then driving in the same direction as the blocked cars were going, on the left-hand track, having turned out to get by the cars, and ran into A, injuring him. The evidence as to the speed at which 13 was driving was conflicting. Held, that there was no evidence of negligence on the part of B rendering him liable for the injury to A.

ACTION for injury to plaintiff below, by being

knocked down and run over by defendant's horse and wagon. In June, 1876, defendant below, Goshorn, was riding in his carriage into the city of Philadelphia, along Lancaster avenue. On this avenue were two street railway tracks. Near Forty-second street the driver of the carriage noticed a block of cars on the right-hand track leading into the city, which was caused by the baulking of a horse attached to the front car. To get by these cars he drove upon the left track, which was about four feet distant from the other, going at a speed, testified by witnesses for defendant to be from two to four miles per hour, and testified by witnesses for plaintiff to be from six to eight miles per hour. At this time plaintiff had hold of the head of the horse attached to the forward car on the left side and was trying to start the baulky horse. The horses suddenly started, and plaintiff, to avoid collision with them and with the car they were drawing, stepped

back and was struck by defendant's wagon and injured. Other facts appear in the opinion. From a judgment in favor of plaintiff defendant took a writ of error. L. Waln Smith, for plaintiff in error. Henry Ilazlehurst and Isaac Hazlehurst, for defendant in error.

It was

MERCUR, J. This is an action on the case. brought to recover damages for injury sustained by the défendant in error by reason of the alleged negligent conduct of the plaintiff in error. To maintain the action the evidence must show the injury to have resulted from the negligence of the latter without any negligence of the former-contributing thereto. Waters v. Wing, 9 P. F. Smith, 211. It is not necessary, to defeat a recovery, that the complainant should have been equally as guilty of negligence as the opposite party. Any concurring negligence of the defendant in error in causing the injury is a complete defense. Catawissa R. R. Co. v. Armstrong, 13 Wright, 186. In case of contributory acts of negligence, the law will not determine whose wrong-doing did most to cause the injury. Little Schuylkill Navigation Co. v. Norton, 12 Harris, 465. This rule extends to the case where one is killed, and the action is brought by surviving relatives. Gerety v. Phila., Wilmington & Baltimore R. R. Co., 31 P. F. Smith, 274. Accidents may occur and injuries may be sustained through negligence, for which the law gives no redress in damages.

Negligence may be said to be the absence of that care which a prudent man would naturally exercise under the circumstances. Catawissa R. R. Co. v. Armstrong, supra. Where there is conflicting evidence as to the acts bearing on the question of negligence, it is for the jury. So, if there be no doubt as to the acts committed, yet, if there be substantial doubts as to the inferences to be drawn from these acts, they should be submitted to the jury. Penn. R. R. Co. v. Barnett, 9 P. F. Smith, 259; Johnson v. Bruner, 11 id. 58; McKee v. Bidwell, 24 id. 218. But whether a state of facts admitted or proved constitutes negligence is generally a question of law, to be declared by the court. Catawissa R. R. Co. v. Armstrong, 2 id. 282; Phila., Wil. & Balt. R. R. Co. v. Stinger, 28 id. 219; Gerety v. R. R. Co., supra. Where facts have not been shown from which negligence may reasonably be inferred, it should not be submitted to a jury to infer, arbitrarily and without evidence, that there was negligence. Phila. & Reading R. R. Co. v. Yerger et al., 23 P. F. Smith, 121; Same v. Heil, 5 Weekly Notes, 91; Clark v. Phila. & Reading R. R. Co., id. 119; Penn. R. R. Co. v. Fries, id. 545.

This accident occurred in Lancaster avenue where there are two street railway tracks. There was a block of cars on the right-hand track leading toward the center of the city, occasioned by the off-horse on the front car baulking. The defendant in error had hold of the head of the near horse for the purpose of starting the horses. The wagon of the plaintiff in error, containing four men and drawn by one horse, was moving in the same direction on the left-hand track. The space between the two tracks was some three or four feet in width. Just as the wagon was passing this car, the horses attached thereto started, and to protect himself against probable injury from the horses which he was holding, the defendant in error stepped back suddenly, and was struck by or came in contact with the wagon. He testified: “I don't think I jumped back; I stepped back just far enough to get clear of the car. I stepped back one step, I think." He further testified, "the carriage struck me; both wheels went over me; the shaft struck me first." His wife testified, "as he started, the horse jumped toward him and knocked him back." Kimble and other witnesses called by defendant in error swore, "Mr. Smith stepped back from the horse's