Page:Federal Reporter, 1st Series, Volume 10.djvu/739

SI'kaY V. IRVINE. 727 �there is no charge that the defendant's jockey was not competeEt for the service and duty assigned to him. �The foui complained of in this case is charged to have consisted in an attempt on the part of the rider of the Belle of Nelson to take the track ahead of Wolverton before his mare was far enough ahead of Wolverton to enable her to draw in front of him without collision. You can readily see if a jockey attempts to take the track ahead of another horse before his horse is a clear length ahead of the other he runs great risk of colliding with the other horse; and if he does so collide, or if he crowds the other horse so as to impede him or com- pel his jockey to hold him in or change his course for the purpose of avoiding a collision, it would be unfair, and therefore would be foui riding; but there may be a case where there is a clear space between the horses sufficient to justify the foremost one in attempting to take the track, and yet at the moment the jockey of the foremost horse attempts the maneuver the rear horse may be pushed or rushed sud- denly up, in which event a collision may occur by the act of the rider of the rear horse. �You will also bear in mind that so far as danger is concerned the rider who attempts a foui runs as great risk to himself and his own horse as he imposes on his competitor, because it is impossible to tell in advance who may be the sufferer. But this fact does not justify a jockey in attempting a foui on the ground that he risks as much as his competitor. « , �So much as to the rule of duty and obligation which each rider and the employer of the rider assumes in a race like this, and is bound to observe towards his competitor. �The plaintiff has given proof tending to show that his horse had the second position in the second beat — that is, that he was started under the wire next to the horse that had the pole, and that he main- tained that position and was a little behind Nero, who had the pole, and that the Belle of Nelson was a little ahead of the plaintiff's horse up to and at the first turn, which was from 160 to 200 yards from the wire ; that at this point the Belle of Nelson was reined in to the left onto the plaintiff's horse, and, in attempting to pass ahead of him, tripped him, and he fell and was fatally injured. The testimony on the part of the plaintiff tends to show this state of faots. This testimony cornes from persons who were spectators of the race, and who, from different positions or stand-points of observation, saw, or think they saw, the movements of each horse, and saw acts on the ��� �