this date, therefore defendants are in open court three times audibly called and come not, but herein wholly make default. The plaintiff, W. Bent Wilson, was sworn and examined, and his evidence heard; and the court, being fully advised in the premises, finds that there is due and owing to the plaintiff from the defendant the sum $35.25 and costs and charges herein. It is therefore considered and adjudged by the court that the plaintiff do have and recover of and from the defendant the sum of $35.25 and the costs and charges and accruing costs of this writ. Witness my hand and seal this 26th day of June, 1899." That no fraud was committed by the constable in his service of said process or in his return indorsed thereon. The conclusions of law stated were in favor of appellees.

Appellants insist that said judgment is void: (1) Because the statement of the cause of action is insufficient. (2) Because the Christian names of the Meyer brothers are not stated, and there is no allegation that the same are unknown. (3) Because the return of the constable as to service of the summons did not show a legal service thereof, in this: that (a) each defendant in said cause was entitled to a copy, and the return shows a service by one copy; (b) that the return only shows a service on "the defendant," when there was more than one defendant, and the one served is not designated; (c) that service as shown by leaving a copy at the last and usual place of residence is not a compliance with the statute. This court has held that a judgment rendered upon an insufficient complaint is not void for that reason. State v. King, 94 Ind. 366, 370; Abdil v. Abdil, 33 Ind. 460, 462; Fritz v. State, 40 Ind. 18, 2123; State v. George, 53 Ind. 434, 438; Jarrell v. Brubaker, 150 Ind. 260, 272, 49 N. E. 1050; Maynard v. Waidlich, 156 Ind. 562, 575, 60 N. E. 348; 2 Van Fleet's Former Adjudication. p. 767. A judgment in favor of or against a firm in their firm name, or in favor of or against a person by his surname alone, or by name in which an initial letter is used, instead of his Christian name, is not void, but is merely irregular. Hopper v. Lucas, 86 Ind. 43; Rogers v. Ware, 2 Neb. 49, 50, 52, 53; Jones v. Martin, 5 Blackf. 351; Bridges v. Layman, 31 Ind. 384, 386; Peden's Adm'r v. King, 30 Ind. 181, 183; Thatcher v. Coleman, 5 Blackf. 76; Cummins v. Peed, 109 Ind. 71, 72, 9 N. E. 603; McGaughey v. Woods, 106 Ind. 380, 382, 7 N. E. 7; Hahn v. Behrman, 73 Ind. 120, 122, 123; Morningstar v. Wiles, 96 Ind. 458; 1 Freeman on Judgments (4th Ed.) p. 280; 20 Ency. of Pleading & Practice, 1131, 1183. This court said in McGaughey v. Woods, 106 Ind., on page 382, 7 N. E., on page 8: "Where a judgment was taken in favor of partners by their firm name against a defendant by the name of H. H. Greenup, it was held the judgment was not a nullity. *

A judgment which omits the Christian names of the parties altogether, while it may not be

binding on persons who in good faith acquire subsequent liens, is nevertheless good between the parties." The statutes of this state, authorize service of process on the defendant in cases before a justice of the peace "by leaving a copy thereof at his last usual place of residence." Section 1520, Burns' Ann. St. 1901 (section 1452, Rev. St. 1881; section 1452, Horner's Ann. St. 1901). It has been held that service by copy is not constructive, but actual, service and is conclusive between the parties. Pigg v. Pigg, 43 Ind. 117; Smith v. Noe, 30 Ind. 117; Williams v. Hitzie, 83 Ind. 303; Hume v. Conditt, 76 Ind. 598, 600, and cases cited; Splahn v. Gillespie, 48 Ind. 397, 405, 407, 410; Dunkle v. Elston, 71 Ind. 585; Sturgis v. Fay, 16 Ind. 429, 79 Am. Dec. 440. If, however, the process was not served by the officer, and false return was procured by the fraudulent acts of the plaintiff, or by a conspiracy between him and the officer, the same is not conclusive. Cavanaugh v. Smith, 84 Ind. 380, 382, 383; Brown v. Eaton, 98 Ind. 591, 594; Krug v. Davis, 85 Ind. 309; Walker v. Robbins, 14 How. 584, 14 L. Ed. 552; Knox County v. Harshman, 133 U. S. 152, 10 Sup. Ct. 257, 33 L. Ed. 586; Johnson v. Jones, 2 Neb. 133; Taylor v. Lewis, 2 J. J. Marsh (Ky.) 400, 19 Am. Dec. 135; Thomas v. Ireland, 88 Ky. 581, 11 S. W. 653, 21 Am. St. Rep. 356. It is settled law in this state that, even where the court is one of inferior jurisdiction, as a justice of the peace or board of commissioners, and there is a defective notice, and the court has passed upon its sufficiency, as a general rule the judgment in such a case is not subject to collateral attack. Freeman on Judgments. § 126; McAlpen v. Sweetser, 76 Ind. 78; Muncey v. Joest, 74 Ind. 409; Stout v. Woods, 79 Ind. 108; Brown v. Goble, 97 Ind. 86. 89.

It is not necessary, however, to decide whether said judgment was void for want of jurisdiction over the defendants in said action before the justice of the peace, for the reason that it was not alleged in the complaint in this case and proved at the trial that appellants had a meritorious defense to said action in which said judgment was rendered. The weight of authority is that, where one seeks to enjoin a judgment as void on account of want of service of process, there being no appearance to the action, it is necessary to allege and prove that he has a meritorious defense to the action in which the judgment was rendered. 2 Freeman on Judgments (4th Ed.) §§ 495, 498, pp. 876-878; 1 Black on Judgments (2d Ed.) § 376; High on Injunctions (4th Ed.) §§ 126, 129a; Williams v. Hitzie, 83 Ind. 303, 308, 309; State v. Hill, 50 Ark. 458, 8 S. W. 401; Stewart v. Brooks, 62 Miss. 492; Newman v. Taylor, 69 Miss. 670, 13 South. 831; Mass. Ben. Life Ass'n v. Lohmiller, 20 C. C. A. 274, 74 Fed. 23; Crafts v. Dexter, 8 Ala. 767, 42 Am. Dec. 666, note at page 669; Dunklin v. Wilson, 64 Ala. 168; Rice v. Tobias, 83 Ala. 348, 3

South. 672; 89 Ala. 214, 7 South. 765; Raisin Fertilizer Co. v. McKenna, 114 Ala. 274, 21 South. 816; Gifford v. Morrison, 37 Ohio St. 502, 41 Am. Rep. 537; Sharp v. Schmidt, 62 Tex. 263; Gregory v. Ford, 14 Cal. 138, 73 Am. Dec. 639; Texas Mexican R. Co. v. Wright, 31 L. R. A., note pages 207, et seq; Burch v. West, 134 Ill. 258, 25 N. E. 658; Piggott v. Addicks, 3 G. Greene (Iowa) 427, 56 Am. Dec. 547; Crawford v. White, 17 Iowa, 560; Coon v. Jones, 10 Iowa, 131; Fowler v. Lee, 10 Gill & J. (Md.) 363, 32 Am. Dec. 172; Harris v. Gwin, 10 Smedes & M. (Miss.) 563; Wilson v. Shipman, 34 Neb. 573, 52 N. W. 576, 33 Am. St. Rep. 660, 662; Janes v. Howell, 37 Neb. 320, 55 N. W. 965, 40 Am. St. Rep. 494; Pilger v. Torrence, 42 Neb. 903, 61 N. W. 99; Winters v. Means, 25 Neb. 241, 41 N. W. 157, 13 Am. St. Rep. 489; Spooner v. Leland, 5 R. I. 348; Crocker v. Allen, 34 8. C. 452, 13 S. E. 650, 27 Am. St. Rep. 831; Stokes v. Knarr, 11 Wis. 389; Farwell Co. v. Hilbert, 91 Wis. 437, 65 N. W. 172, 30 L. R. A. 235; Ford v. Hill, 92 Wis. 188, 66 N. W. 115, 53 Am. St. Rep. 902, 904 and cases cited; Jones v. Cullen, 142 Ind. 335, 348, 349, 40 N. E. 124, and cases cited.

In Williams v. Hitzie, 83 Ind. 303, above cited, this court said, at pages 308, 309: "Freeman, after stating that it has been held that, when judgment has been rendered against a party without service of process and without his knowledge, he may be relieved without showing merits, adds: 'But the better established rule undoubtedly is, that notwithstanding an alleged want of service of process, a court of equity will not interfere to set aside a judgment until it appears that the result will be other or different from that already reached.' Stokes v. Knarr, 11 Wis. 391. In the last case cited the court says: 'We do not deem it necessary to decide whether the justice of the peace lost jurisdiction of the case.

It may be conceded for the purpose of this case that he did, and we still think it does not follow that a court of equity will interfere to enjoin the judgment. Those courts do not interfere merely for a defect of jurisdiction in the court where the judgment is rendered. 2 Story, Eq. Jur. § 898. On the contrary, they interfere only to prevent injustice. And if a party can say nothing against the justice of a judgment, can give no reason why in equity he ought not to pay it, a court of equity will not interfere, but will leave him to contend against it at law, in the best way he can." In Woods v. Brown, 93 Ind. 164, at page 168, 47 Am. Rep. 369, this court said: "It has already been observed that the complaint fails to disclose that Pierson has, or ever had, any valid or meritorious defense to the causes of action on which the judgments were predicated. Nor does the complaint show that anything has occurred since their rendition calling for equitable relief. In such case the better opinion seems to be that a court of equity will

not interfere, either to stay proceedings or to set aside a judgment, on the ground of want of jurisdiction of the person of the judgment defendant. In Williams v. Hitzie 83 Ind. 303, it was held that the collection of a judgment rendered before a justice of the peace would not be enjoined for want of jurisdiction, where there was no claim of payment of the judgment or denial of the cause of action upon which it was rendered." There are some exceptions to this rule in this state, but appellants have not by allegation and proof brought themselves within any of them.

Judgment affirmed.

MCINTYRE v. ORNER. (No. 20,610.) (Supreme Court of Indiana. Jan. 30, 1906.) 1. HIGHWAYS-USE OF AUTOMOBILES-CARE REQUIRED.

Inasmuch as automobiles have been recognized by Acts 1905, p. 202, c. 123, as lawful vehicles, if the operation of an automobile results in injury to one traveling in another mode, the autoist is not liable for the injury, unless he used the machine at a time, in a manner, under circumstances inconsistent with a proper regard for the rights of others.

or

2. SAME-NEGLIGENCE IN OPERATING AUTOMO

BILE.

It was negligence for an autoist to drive his automobile at the rate of more than 15 miles an hour toward a team of horses which were frightened at the machine, where the autoist saw, or could have seen, when 300 feet away, that the horses were frightened. 3. SAME CONTRIBUTORY NEGLIGENCE.

One riding in a carriage, who saw that the horses were frightened at an approaching automobile, was not guilty of contributory negligence in remaining in the carriage.

4. NEGLIGENCE QUESTIONS FOR JURY.

Where, under the rules of law, a given class of facts, embodying all the controlling facts and evidence and the reasonable inferences arising therefrom, constitute negligence or due care, it is proper to so instruct the jury.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 277-284, 293–297.] 5. HIGHWAYS-OPERATION OF AUTOMOBILE — NEGLIGENCE-INSTRUCTIONS.

Where an autoist, when at the distance of 300 feet from a team of horses, saw the team trying to break away with fright, it was his duty, under the express provisions of Acts 1905, p. 202, c. 123, to stop or check up, and his failure to do so was not excusable on the ground that he did not have the opportunity to do so because of the necessity of his keeping his attention fixed on the road, in order to avoid holes and obstacles.

6. SAME.

The failure of the autoist to stop on perceiving the fright of the team was not excusable because of the fact that he had previously passed the same team, and that the fright of the same had not caused any injury to the occupants of the carriage.

7. TRIAL INSTRUCTIONS - CONSTRUCTION OF CHARGE AS A WHOLE.

In action for injuries, an instruction defining negligence was not erroneous, because it did not state what constituted contributory negligence, where another instruction outlined the circumstances under which plaintiff should be found guilty of contributory negligence.

In an action for injuries owing to plaintiff's horses having been frightened by defendant's automobile, an instruction that if plaintiff, in standing up in her carriage and trying to get out, acted under a sudden fright and impulse created by peril, and in so doing acted as "ordinarily prudent persons might act" under the circumstances, it was a question for the jury whether she was negligent, was not erroneous on the theory that prudent men often act imprudently.

9. TRIAL-SUBMISSION OF INTERROGATORIES— COMMENT BY COUNSEL.

The court having indicated an intention to submit interrogatories requested by defendant, it was not error to permit plaintiff's counsel to read and comment on them to the jury.

Appeal from Circuit Court, Whitley County; Jos. W. Adair, Judge.

Action by Susan Orner against William H. McIntyre. From a judgment in favor of plaintiff, defendant appeals. Transferred from Appellate Court under section 1337u, Burns' Ann. St. 1901. Affirmed.

J. E. Rose, T. R. Marshall, W. F. McNagny, and P. H. Clugston, for appellant. Chas. F. Holler, A. A. Adams, and L. H. Wrigley, for appellee.

HADLEY, J. Appellee successfully prosecuted this action against appellant to recover damages for injuries claimed to have been received by appellant's negligence in driving an automobile on the public highway. The action is based upon the following facts disclosed by the jury in answers to interrogatories: The plaintiff, being 54 years of age and a resident of South Bend, about 3 o'clock p. m. of November 1, 1902, left the city of Auburn with the body of her deceased son to drive across the county to the town of Waterloo, there to take a train for home. The plaintiff and her son occupied the rear seat, and Mr. Ling and Mr. Mayfield, friends of her deceased son, occupied the front seat, of a carriage, which, with team to draw it, had been procured at a livery stable for the purpose, but without the knowledge and approval of the plaintiff. One of the horses was to some extent afraid of automobiles and the other was not. Ling, accustomed to driving and managing horses, drove the team without approval, but without any expressed objection from the plaintiff. The road from Auburn to Waterloo runs in a northeasterly direction. On the journey the hearse preceded the carriage containing the plaintiff. Later in the same afternoon appellant, with three other gentlemen, left Auburn by the same road for Waterloo in a gasoline automobile belonging to appellant. The machine was two-seated, could speed 20 miles an hour, and exploded its gasoline in a chamber which to some extent deadened the sound. Appellant drove and managed the machine. On the journey it was necessary for appellant to look ahead to avoid holes and obstructions in the road; but on the occasion of the plaintiff's accident appellant was operat

ing his machine in an unusual and extraordinary manner by going at a high rate of speed when meeting teams. On the way to Waterloo appellant drove his automobile past the carriage in which the plaintiff was riding, greatly frightened the horses, and caused them to crowd to the side of the road. Both appellee and appellant saw the fright of the horses. Appellant proceeded with his party to Waterloo, remained but a short time, and entered upon his return to Auburn. A short distance from the former town he met the funeral party. The hearse was 500 feet ahead of the carriage. A short distance before meeting the hearse, appellant drove his automobile to one side of the road and was about to stop when the driver of the hearse signaled him to come on. Appellant proceeded, and, having passed the hearse, he speeded his automobile towards the carriage at more than 15 miles an hour, the machine puffing and making a great noise, and, when it approached within 200 feet of the carriage, the horses, in apparent fright, began crowding to one side, and, when within 15 to 20 feet of the plaintiff, whirled back into the road, and, in turning the carriage, cramped and broke a fore wheel, tipping the vehicle, and causing the plaintiff to be thrown out and injured. The driver held the lines firmly and taut, and an ordinarily cautious man could not have driven the team past the automobile, because it was approaching at a high rate of speed. The driver did not request, nor signal, appellant to stop the machine; but, when the horses whirled around, appellant threw off the power and applied the brake, and stopped the automobile when within 15 or 20 feet of the plaintiff. The team manifested fright when the automobile was 200 feet away, seeing which, an ordinarily prudent man would have anticipated that the further forward movement of the machine would be likely to cause injury to the occupants of the carriage. If appellant had run his machine at less speed, it would have made less noise; and he operated it in a careless manner, because he speeded it too fast and too close to the team.

There are two paragraphs of complaint, both proceeding upon the theory that the plaintiff was injured by the negligence of appellant in continuing to run his automobile on the highway at an excessive speed, and failing to stop, or slow up, when, as alleged in one paragraph, "he saw from the frightened condition of plaintiff's horses that to proceed further would result in injury to the plaintiff," and, in the other, by the exercise of reasonable care he might have seen that fact. As relating to the question of negligence the complaint charges "that as said defendant approached said carriage with his said automobile, and when he was yet more than 300 feet distant therefrom, the horses attached to said carriage, drawing the plaintiff and her said compan

*

ions, became badly frightened at the approach of said automobile, the loud noise made by the propulsion thereof, and the operation of its said motor, the high and dangerous rate of speed-more than 15 miles an hour-at which the same was approaching them, and the size and appearance of said vehicle, and plunged, reared, shied, and exhibited all of the evidences of fear usually manifested by horses when greatly frightened, ✶ ✶ and said defendant, well knowing said frightened condition of said horses. well knowing, also, that his said automobile, the approach thereof at said high and dangerous rate of speed, and the noise made thereby, were the cause of such fright, and well knowing that the nearer approach of his said automobile at said speed and under the circumstances aforesaid would greatly increase the fright of said horses, without exercising or using any care whatever, carelessly, recklessly, and negligently propelled his said automobile at said high and danger. ous rate of speed up to and until the same was within less than 15 feet of said horses before the same was stopped or the speed thereof checked, * causing said horses to whirl around in said highway and run away to the south along the same, breaking one of the wheels of said carriage to which they were attached, and throwing the plaintiff with great violence out of said carriage upon the hard ground, whereby," etc. Is this a sufficient averment of negligence?

The employment of the automobile on the public highways, as a means of transportation, has been recognized in this state as a lawful use of the road (Acts 1905, p. 202, c. 123; Indiana Springs Co. v. Brown [Ind. Sup.] 74 N. E. 615); and if it results in causing injury to one traveling by another mode, the autoist cannot be held liable for the injury, unless it is made to appear that he used the machine at a time, or in a manner, or under circumstances inconsistent with a proper regard for the rights of others. There is nothing dangerous in the use of an automobile when managed by an intelligent and prudent driver. Its guidance, its speed, and its noise are all subject to quick and easy regulation, and under the control of a competent and considerate manager it is as harmless, or may soon become as harmless, on the road, as other vehicles in common use. It is the manner of driving an automobile on the highway, too often indulged in by thoughtless pleasure seekers and for the exploitation of a machine, that constitutes a menance to public safety. While it is the law that automobiles, subject to statutory restrictions, have equal right with other vehicles to occupy the highways, it must be borne in mind that this equality of right imposes the reciprocal duty of managing one's vehicle, whatever its character, with care and caution to avoid causing injury to others with equal right. As we said in Indiana Springs Co. v. Brown, supra: "Each is required to regulate his own use

by the observance of ordinary care to avoid receiving injury, as well as from inflicting it upon others." Within these principles it was incumbent upon appellant to take notice, because common knowledge that motor carriages are, as yet, usually strange objects to horses, and likely to startle them when driven up in front at a rapid rate. We assume, therefore, that he knew, when he met the plaintiff's carriage on his return to Auburn, especially after the fright he observed in the horses as he passed them on the way to Waterloo, that his car, operated in the manner and at the speed described, was highly calculated to frighten the horses, and liable to cause them to injure the occupants of the carriage. With such knowledge it was appellant's duty to keep a lookout ahead, and, as he approached the carriage, note the effect of his onward movement upon the horses. and when he saw, or could have seen by the exercise of reasonable caution, that the horses were under excitement forcibly crowding off the road, and manifesting unmistak able fright, ordinary care required him to slow up, stop his machine, or do whatever was reasonably required to relieve the persons in the carriage of their perilous situation. In Shinkle v. McCullough (1903) 116 Ky. 960, 77 S. W. 196, 105 Am. St. Rep. 249, it is said: "If appellant knew, or could have known by the exercise of ordinary care, that the machine under his control had so far excited appellee's horse as to render him dangerous and unmanageable, it was his duty to have stopped his automobile and taken such other steps for appellee's safety as ordinary prudence might suggest." See, also, to same effect, Christy v. Elliott, 216 III. 31, 74 N. E. 1035. This, it is alleged, appellant did not do, but, on the contrary, upon seeing the plaintiff's team rearing and plunging with fright, when 300 feet away, knowingly drove his machine into their faces at more than 15 miles an hour, without stopping or checking his speed, until within 15 or 20 feet of the plaintiff. As a charge of negligence, this is far within the limits of the rule.

Appellant insists that the complaint shows upon its face that appellee was guilty of contributory negligence. The claim springs from the averments "that the plaintiff was traveling with three other persons in a twoseated covered carriage, drawn by a team of gentle, well-broken horses, which were in charge of, and driven by, a competent and careful driver, who sat upon the front seat of said carriage while the plaintiff and her son occupied the rear seat," and "on the road to Waterloo appellant, in his automobile, rapidly and with great noise passed the carriage in which the plaintiff was riding, whereby the horses attached to said carriage became greatly frightened, and reared, plunged, and became almost unmanageable." It is argued that, since it is shown that appellee occupied the carriage

when appellant drove his automobile by it on the road to Waterloo, we must presume, because not denied, that she, as well as appellant beheld the fright and conduct of the horses; and when appellant was about to meet the carriage on his return from Waterloo, and saw, as alleged, the horses plunging and crowding when the automobile was 300 feet distant, we must also presume that appellee in the carriage saw the automobile coming as far as appellant in the automobile saw the frightened horses plunging, and, so seeing and knowing the increasing peril, it was negligence on her part to remain in the carriage and make no effort to reach a place of safety or have the horses secured. The specific allegations of the complaint are not sufficient to overcome the presumption of noncontributory negligence created by the statute. Greenawaldt v. Lake Shore, etc., R. Co. (Ind. Sup. last term, April 7, 1905) 74 N. E. 1081. If we could presume that the plaintiff saw the automobile coming when 300 feet away, and the team was at the time rearing and plunging, we could not presume that her failure to jump out of the carriage was negligence. It might have been far more dangerous under the circumstances to attempt to alight than to remain seated in the carriage. We think the second paragraph of the complaint is good and that the demurrer thereto was properly overruled.

Complaint is made of the giving and refusing of certain instructions. In the third instruction given, the court, after directing the jury that, if they found from the evidence the existence of certain enumerated facts relating to the conduct of appellant in the operation of his automobile at the time of the plaintiff's accident continued, "if the facts established by the evidence are as above stated, then you should find for the plaintiff, unless you should also find it established by a fair preponderance of the evidence that there was contributory negligence on the part of, or imputable to, the plaintiff, which precludes a recovery by her."

It is objected, first, that the instruction is erroneous, because the court had no right to declare that any state of facts-if the question of negligence was to go to the jury— constituted negligence; that the most the court could have properly done was to set out a group of facts and authorize the jury to construe them under the law, with all the other facts and circumstances in evidence, in determining the question of negligence. We think the rule here contended for by appellant is too narrow. There are frequent cases, no doubt, where certain facts in evidence may be selected which, if standing alone, would constitute negligence, but under which, when considered with other facts and circumstances in evidence of a modifying character, the question of negligence becomes equivocal. In such cases it would be clearly error for the court to enumerate only the former class 76 N.E.-48

of facts, and direct the jury, if they found them proved, they should find the existence of negligence; and equally erroneous if the unstated facts would even tend to render the question of negligence doubtful, or such as equally prudent persons would characterize differently. But the controlling facts of a case may be of a character and so fully stated as to exclude all reasonable and possible modifying inference, and in such cases we see no impropriety in the court informing the jury whether or not such facts if established are sufficient in law. In so doing there is on invasion of the province of the jury. The facts are for the jury, and the law for the court. If under the rules of the law a given class of facts, embodying all the controlling facts in evidence and the reasonable inferences arising therefrom, constitute negligence, or due care, it is proper for the trial judge to tell the jury so for their guidance in returning their verdict. His primary duty on the bench is to see that the law is properly applied to the facts, and in principle he is doing the same thing whenever he is called upon to consider the correctness of a general verdict in the light of the special facts upon which it is founded as disclosed by answers to interrogatories. The general rule is thus stated in Shoner v. Pennsylvania Co., 130 Ind., at page 177, 28 N. E., at page 618. "In cases involving questions of negligence, the rule is now settled that, where the facts are undisputed (or found by a jury to exist) and the inferences which may be drawn from them are not equivocal and can lead to but one conclusion, the court may adjudge as matter of law that there is, or is not, negligence." To same effect see Mann v. Belt. etc., R. Co., 128 Ind. 139, 141, 26 N. E. 819; Board v. Bonebrake, 146 Ind. 311, 316, 45 N. E. 470; Oleson v. Lake Shore Ry. Co., 143 Ind. 405, 42 N. E. 736, 32 L. R. A. 149.

It is not claimed by appellant that the facts summed up in the instruction were insufficient of themselves to constitute negligence; but he claims that the hypothesis should have embraced an additional fact shown by the evidence which tended to excuse him for not heeding the fright of appellee's horses and stopping his automobile sooner, namely, that he, as manager of the auto, did not have time and opportunity to look, because it was necessary for him to keep his eyes and attention fixed on the track of the road to enable him to guide the machine safely by, avoiding chuck holes and other obstacles. We are unwilling to admit that the omitted fact would have furnished appellant with a shadow of justification for continuing to speed his machine at more than 15 miles an hour to within 15 or 20 feet of the carriage, and until the horses had whirled around, thrown the plaintiff out, and taken flight back into the road. With the knowledge that the horses to the plaintiff's carriage were nervous, and that he would soon meet them, it would be a strange rule of law that