Mr. Justice Graves
delivered the opinion of the court.
2. Master and servant, § 544*—when declaration-does not sufficiently aver nonexistence of fellow-servant relation. In 'an action for injuries sustained by a circus employee while riding along, a street on a circus wagon, resulting from the horses attached thereto becoming frightened and running away, as the result of the alleged mismanagement of them by the driver, an averment that the plain-tie had nothing to do with the management of the horses, held not a sufficient averment that the plaintie and the driver were not fellow-servants. 3. Master and servant, § 760*—when proximate cause of injury to employee question for jury. Where, in an action by a circus employee for personal injuries from horses attached to a wagon in which the plaintiff was riding running away, there was evidence that if a bystander had not waved some object at the horses after they became unmanageable the accident would not have happened, the question of what was the proximate cause of the injury was held for the jury. 4. Master and servant, § 770*—when direction of verdict in action for personal injuries improper. In an action for personal injuries by an employee against his employer, an instruction directing a verdict for the plaintiff on proof by a preponderance of the evidence of the facts alleged in the declaration, held erroneous where the declaration failed to deny the assumption of risk by the plaintiff and that the servant, whose negligence was alleged to have caused the injury, was a fellow-servant of the plaintiff. 5. Instructions, § 89*—when instruction on noncontrolling effect of number of witnesses erroneous. An instruction charging the jury “you are not bound by the number of witnesses who may testify on one side or the other of any particular fact or state of facts,” held incorrect, as, in some cases, where other things are equal, the number of witnesses may be controlling. Free access — add to your briefcase to read the full text and ask questions with AI