Shaw, J., Angellotti, J., Sloss, J., Henshaw, J., McFarland, J., and Lorigan, J., concurred.

ANGELLOTTI, J., Concurring. While I have concurred in the foregoing, I deem it proper to add that I am satisfied that the effect of the charter provision declaring that an office "becomes vacant when the incumbent thereof dies, resigns, is adjudged insane, convicted of a felony," etc., was to create a vacancy in the office of mayor upon the rendition and entry of the verdict of conviction against the then incumbent. One is "convicted" of a crime when a verdict of guilty has been so given and entered against him, or when a plea of guilty has been given and entered. This is the well-settled meaning of the term as ordinarily used in our constitutional and statutory provisions, and I can see no warrant for concluding that it was used in any other sense in the charter provision under discussion. Under this view, it is entirely immaterial whether or not judgment has been given upon the conviction, or whether or not the execution of any judgment so given has been stayed by an appeal. The vacancy in the office is in no way dependent upon any judgment given on the conviction, but was fully and finally created by the happening of the event specified-viz., the rendition and entry of the verdict of conviction.

There can, of course, be no question as to the power of the people of the city and county of San Francisco to make such provision in their charter as to purely municipal offices. As is shown in the opinion of the chief justice, the provision for the ouster of the incumbent in the contingency named is in no degree by way of punishment for any offense alleged to have been committed by him, but is solely for the purpose of securing an efficient, orderly, and decent discharge of the duties of the office, which doubtless it was deemed could not be had during the incumbency of one under a verdict of conviction of felony.

Sloss, J., and Shaw, J., concurred.

As to Whether Title to an Office can be Tried in Mandamus proceedings, see the note to State v. Gardner, 98 Am. St. Rep. 884; State v. Grant, 14 Wyo. 41, 116 Am. St. Rep. 982, and cases cited in the crossreference note thereto.

One is "Convicted" who has pleaded guilty and been found guilty by a jury, although sentence has not been pronounced: Quintard v. Knoedler, 53 Conn. 485, 55 Am. Rep. 149. But see Blaufus v.

People, 69 N. Y. 107, 25 Am. Rep. 148. And a pardon granted after verdict and judgment, but pending appeal, is valid under a statute authorizing the governor to grant pardons "after conviction": State v. Alexander, 76 N. C. 231, 22 Am. Rep. 675; Commonwealth v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699.

IN THE

SUPREME COURT

OF

COLORADO.

CAUGHLIN v. CAMPBELL-SELL BAKING COMPANY. [39 Colo. 148, 89 Pac. 83.]

NEGLIGENCE-Leaving Team in Public Street.-Leaving a very gentle team upon the public street restrained by a fifty-six pound weight connected by straps to the bridle-bits is not negligence per se, for which the owner of the team is liable for mischief done by the team in running away. The question whether such act is due care or negligence is for the jury to determine from all the facts and circumstances surrounding the transaction. (p. 160.)

APPEAL.-Findings of the Trial Court are entitled to the same consideration at the hands of the appellate court as the verdict of a jury. (p. 162.)

NEGLIGENCE-Leaving Horse in Street. The owner of a gentle horse who leaves it standing in a public street, fastened as an ordinarily prudent man would fasten it in like circumstances, is not responsible for whatever injuries may occur if the horse breaks loose. (p. 163.)

NEGLIGENCE-Leaving Horse in Public Street.-A person who leaves his horse in a public street or highway must use ordinary care and prudence in fastening or restraining it so as to prevent injury. (pp. 163, 164.)

NEGLIGENCE Ordinance as Evidence.-An ordinance imposing a penalty may be introduced in evidence, not for the purpose of creating or taking away a civil liability, but as bearing upon the issue of negligence. The jury may consider compliance with the ordinance as a circumstance tending to show due care, and a violation as tending to show negligence. (p. 164.)

T. H. Hardcastle, for the appellant.

J. Grozier, for the appellee.

149 CAMPBELL, J. The plaintiff Caughlin says he left his bicycle on Fifteenth street in the city of Denver leaning against 150 the adjacent curbstone. While the driver of defendant's wagon, to which two horses were attached, was engaged in making delivery of the products of its bakery, which business the defendant was conducting in the city of Denver,

the driver, negligently, as the complaint avers, left the wagon and team standing near plaintiff's vehicle without any person in charge or control thereof, by reason of which negligence the horses ran away, and with the wagon ran over plaintiff's bicycle and injured it, for which damages are sought by this action. The negligence of the defendant is denied in the answer. Upon these controverted issues the case was tried by the court without a jury. The findings were against the plaintiff, and judgment thereon was rendered dismissing the action. From this judgment the plaintiff took the case to the court of appeals.

.

For injuries of this character, the cause of action is negligence. Plaintiff in his complaint expressly grounded his action upon defendant's negligence in leaving the team and wagon in the street without any person in charge. From the admissions of the parties and specific findings of the court upon evidence which, though not altogether harmonious as to some minor particulars, as to important matters is not conflicting, it appears that defendant's driver has been employed for more than a year, and the team, though one of the horses was used only a short time, were very gentle and quiet, had traveled this same route every day, and had never been known to be frightened or to show evidence of viciousness. On the morning of the accident, after plaintiff left his bicycle on Fifteenth street, placing it in the ordinary way in which riders do, he went into Thompson's grocery store, and the defendant's driver with a team of horses drove up in front of the store, whether before or after plaintiff alighted from his bicycle the 151 witnesses do not agree, and stopped within two or three feet of the sidewalk, got off the wagon, put on the brakes, and let drop to the ground a weight, which was supposed to hold the horses, and then entered the store. While the driver was there the team started up for some reason which is not disclosed by the evidence, notwithstanding the precautions taken by the driver, and ran over and injured plaintiff's bicycle. The court found that the driver exercised reasonable care in what he did; that there was nothing unusual about the team; that he had a right to drive them where he did and leave them in the manner in which he did, and from all the facts the finding was that defendant was not guilty of the negligence charged.

The horses were not hitched to any permanent object, but were restrained or held in check by means of an iron weight.

To this piece of iron, weighing fifty-six pounds, which is carried in the wagon or hangs suspended therefrom when the horses are traveling, are attached two broad straps, one by which the weight is lifted from and dropped to the ground, and the other passes along under the tongue of the wagon to within four feet of the heads of the horses. Fastened to this broad strap at this point is a ring, and connected with this ring are two other straps, one running to the mouth of each horse and attached to the rings of the bridle bits on both sides of his mouth, so that when the weight is dropped from the wagon and the horses attempt to move the strap pulls upon the bits of the horses on both sides at the same time.

The appellant's position is that the act of defendant's driver, in leaving the team and wagon standing in the street as he did, was negligence per se, for which the defendant is liable in damages for any mischief that the horses may do. It is not the law 152 that the owner of a vehicle drawn by horses is absolutely liable for damages that they may do while they are being driven along, or left standing in, a public highway. The plaintiff unquestionably was lawfully on the street with his bicycle, and the evidence does not show that he was guilty of negligence that contributed to the injury. The defendant likewise was lawfully on the street with its horses and wagon. It is not true, however, as the plaintiff contends, that the mere act of leaving the horses and wagon on the street unattended is negligence per se, even if the fact that the horses got loose be some evidence of negligence. The latter point was so ruled in Strup v. Edens, 22 Wis. 432, though it was said that such a thing might occur notwithstanding due care in hitching.

The very cases cited by plaintiff show that where some restraint has been placed upon horses left standing in a street, the question whether such act is due care or negligence is for the jury to determine from all the facts and circumstances surrounding the transaction. Such was the case of Rumsey v. Nelson, 58 Vt. 590, 3 Atl. 484. There it was said that it might be considered as negligence in the fastening or leaving unattended of one horse that would not be so considered in another, and for that reason the character of the horse as being gentle or vicious is relevant.

In Pearl v. Macauley, 6 App. Div. 70, 39 N. Y. Supp. 472, which was an action for personal injuries which resulted from plaintiff's being knocked down and run over by defendant's