Defendant takes tbe broad ground tbat, assuming plaintiff’s evidence to be true, it does not as a matter of law show negligence on its part; tbat since it is admitted tbe motorman ran bis car to within three feet of tbe horse standing unattended, sounded the gong and blew the whistle while approaching or close to tbe horse without bis showing any signs of fright, it follows tbat, even if tbe gong was sounded, tbe whistle blown, and tbe air released while plaintiff was taking tbe horse across tbe track, sucb sounds being usual and ordinary ones made by a car when starting, no negligence is shown, because negligence cannot be predicated upon the usual noises made in tbe operation of a car, citing Abbot v. Kalbus, 74 Wis. 504, 43 N. W. 367; Cahoon v. C. & N. W. R. Co. 85 Wis. 570, 55 N. W. 900; Bishop v. Belle City St. R. Co. 92 Wis. 139, 65 N. W. 733; Eastwood v. La Crosse City R. Co. 94 Wis. 163, 68 N. W. 651; Gould v. Merrill R. & L. Co. 139 Wis. 433, 121 N. W. 161; Flaherty v. Harrison, 98 Wis. 559, 74 N. W. 360; Walters v. C., M. & St. P. R. Co. 104 Wis. 251, 80 N. W. 451; Wilson v. Chippewa Valley E. R. Co. 120 Wis. 636, 98 N. W. 536; Crowley v. C., *587St. P., M. & O. R. Co. 122 Wis. 287, 99 N. W. 1016; and Fay v. M., St. P. & S. S. M. R. Co. 131 Wis. 639, 111 N. W. 683. Tbe motorman’s reason for coming so close to the horse before stopping is thus stated by him:

“I came aronnd Second and Wells and I saw the horse there. I was then two blocks away. I drove right np within about three feet of the horse and stopped. He was tied. I didn’t stop back about ten feet because the horse was not scared. I drove up to within two feet of the horse to attract the man’s attention enough so he would have to come out and get' the rig out. That is the reason for going within two feet of the horse’s head instead of ten feet, to have this man come out and get his rig out of the way.”

While the car was so standing plaintiff came out of the store and went to the horse’s head and said to the motorman, “Please, gentleman, give me a little time. I will take off the wagon and take away the horse to the right side and you can get through, because the horse is a young horse.” There is evidence to the effect that as soon as plaintiff unhitched the stone weight the air was released with a hissing sound, the whistle blown real loud and shrill and the gong sounded, and the horse became frightened and ran away. Conceding that the evidence does not support the finding that the air was released and the whistle blown in an unusual manner, still there is evidence that such release and blowing were unnecessary and negligent at the time they were made because made while the horse was standing so close in front of the car and before time was given plaintiff to remove him. The rule that negligence cannot be predicated upon the usual noises attendant upon the operation of a car is limited to usual and ordinary circumstances. The situation may be such that the release of the air or the blowing of a whistle or premature starting of a car may constitute negligence. Here the situation was at least somewhat unusual. A young horse standing ■close in front of a car making preparations to start, though not having’ shown fright at the approaching car, might be*588come frightened upon hearing the release of the air and the sound of the whistle while he was in. the act of getting out of the way. Evidently the jury came to the conclusion that the making of such noises with the horse so close was unnecessary ; that the motorman should have allowed plaintiff to take the horse off the track or at least farther away before such sounds were made; and that his failure to do so constituted negligence. Such conclusion rests upon sufficient facts, and inferences which a jury may legitimately draw therefrom, to render it proof against an attack that it is wrong as a matter of law. The case is not unlike that of Heer v. Warren-Scharf A. P. Co. 118 Wis. 57, 94 N. W. 789, where it was held that it was a question for the jury to determine whether it was negligence to start a steam roller, standing outside the limits of the driveway of a street, at the moment a passing horse is slightly in front of it.

Some claim is made that plaintiff was guilty of contributory negligence as a matter of law because he hung to the neck of the horse instead of to the bridle. He testified that when the whistle blew and the air was released he had his hand in the bridle ring; that the horse reared and he was afraid he would fall under him and get hurt, so he threw his hands over the neck of the horse to keep from being run over, and held on till he fell off on Fourth street. He no doubt was and deemed himself in a position of surprise and sudden peril; therefore he cannot be held negligent as a matter of law because he did not choose the safest means of escape. Bain v. N. P. R. Co. 120 Wis. 412, 423, 98 N. W. 241, and cases cited.

By the Court. — Judgment affirmed.