Tbis was a judgment as of nonsuit. Tbe evidence is to be taken in tbe light most favorable to plaintiff, and be is entitled to tbe benefit of every reasonable intendment upon tbe evidence and every reasonable inference to be drawn therefrom. Davis v. Long, ante, 131, and cases cited.
Plaintiff left bis wagon and team of two horses in front of Davis’ store in tbe village of Leicester. One of tbe horses and two wheels of tbe wagon, front and rear, were off tbe pavement. On direct examination, Arvill King, witness for plaintiff, testified: “I was bolding to *746Mr. Oasada’s wagon when the truck ran into the horse. . . . Tbe horse moved his head before the truck struck him, hut he did not move his hack part.” Defendant, who was driving the truck, approached facing the team. King’s testimony on cross-examination was weakened as to whether he could see the collision from where he was sitting. This did not have the effect of withdrawing the case from the jury. In re Fuller et al., ante, 512, and cases cited. ¥e think that the evidence was sufficient to be submitted to the jury. The facts can be shown by circumstantial as well as direct evidence. The probative force was for the jury and not the court. The jury must determine the facts when the case comes on again for trial, under proper instructions from the court below. From the complaint, the actionable negligence charged is in many respects similar to the famous Donkey case, known in every jurisdiction subject to Anglo-American jurisprudence.
In Davies v. Mann, Vol. 10, M. & W. Reports, p. 546, it was said: “At the trial before Erskine, J. (son of the Lord Chancellor), it appeared that the plaintiff, having' fettered the forefeet of an ass belonging to him, turned it into a public highway, and at the time in question the ass was grazing on the off-side of a road about eight yards wide, when the defendant’s wagon,' with a team of three horses, coming down a slight descent, at what the witness termed a smartish pace, ran against the ass, knocked it down, and, the wheels passing over it, it died soon after. The ass was fettered at the time, and it was proved that the driver of the wagon was some little distance behind the horses. The learned judge told the jury that, though the act of the plaintiff, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages traveling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant; and his Lordship directed them, if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff.” Lord Erskine’s position was held to be “perfectly correct” by Parke, B., all the judges concurring. This case has been approved in Gunter v. Wicker, 85 N. C., p. 310; cited in 55 L. R. A., 454. See Norman v. R. R., 167 N. C., p. 533; Moore v. R. R., 185 N. C., 189.
In Hinnant v. Power Co., 187 N. C., p. 297, it was said: “The principle of Davies v. Mann, 10 M. & W., 546, and that line of cases cited by defendant’s counsel, cannot be applied to this case. The common law1 as to ‘common carriers’ has been changed by statute.”
We think there was error in the judgment as of nonsuit.
Reversed.