$25 with costs upon the lower scale, together with the costs of the appeal.
L'AssocrA. KING and G-IROUARD JJ. concurred in the judg- fACEUTIQUE inent allowing the appeal for the reasons stated by *Q. Sedgewick J.
GWYNNE J.-1 this action a verdict was rendered in favour of the plaintiffs against the City of Chatham for damages for which the third party was ordered to indemnify the City of Chatham.
The judgment of the learned trial judge having been confirmed in appeal, the third party, by leave of the Court of Appeal, at Toronto, in pursuance of a statute, affecting the case, appeals against the judgment as rendered against it, whether Chatham be or be not liable to the plaintiffs, and the Corporation of the City of Chatham by like leave appeals against the judgments rendered in favour of the plaintiffs against it. As between the third party and the Corporation Chatham, we entertain no doubt that the telegraph pole to which the learned judge attributes the accident which was the cause of the action, was planted in a street in Chatham, presumably by the servants of the third party, but by the authority of the corporation. And as between the Corporation of Chatham and the plaintiffs, we likewise entertain no doubt that the said pole so planted by the corporation was lawfully planted where it was, outside of the portion of the highway appropriated by by-law for the use of horses and carriages, and so was not a nuisance of which persons lawfully using the highway could complain.
But we hold it to be clearly established by the o evidence that the pole was not the causa causans or any part of the cause of the accident, which was the running away of the horses with the carriage in which the injured plaintiffs were, in a violent manner, at excessive speed and wholly beyond the control of the person driving them.
The complaint at the trial was not that the pole caused the injury complained of, but the bad state repair of the road, which it was contended caused the carriage to upset. The learned trial judge held, and we think rightly, against this contention, but as to the pole, instead of having caused the accident, the evidence seems to establish that it caused rather the separation of the horses from the carriage, (if it had any connection with the accident at all), and thereby prevented greater injury than might otherwise have happened.
But the causa causans was the violent, uncontrollable speed at which the horses were running away.
Without saying that in no case can a person injured in a carriage drawn by running-away horses maintain an action for damages, we hold that in the present case the sole conclusion justified by the evidence is that the uncontrollable manner in which the horses were running away was the cause of the accident.
We are of opinion, therefore, that the appeal of the corporation must be allowed with costs, and that the action be dismissed with costs, but that the corporation be ordered to pay the Telephone Company their costs of this appeal and also the costs incurred in the