Bigger v. Acree

• Court: Arkansas Supreme Court
• Writing for the Court: HILL, C. J.
• Citation: Bigger v. Acree, 112 S.W. 879, 87 Ark. 318 (Ark. 1908)
• Decision Date: 21 September 1908
• Parties: BIGGER v. ACREE

112 S.W. 879

87 Ark. 318

BIGGER v. ACREE

Supreme Court of Arkansas

September 21, 1908

Appeal from Randolph Circuit Court; John W. Meeks, Judge; reversed.

Judgment reversed and cause remanded.

Witt & Schoonover, for appellant.

A livery stable keeper is not an insurer of the property placed in his charge, but is held only to that degree of care for its safety which a person of ordinary prudence would exercise under the circumstances if it were his own. 72 Ark. 572. He is not liable for injury to the property unless that injury results from his own negligence. There is no proof of negligence here. If he were negligent, he would nevertheless not be liable for the death of the animal unless it be shown that the negligence was the proximate cause of the death. 69 Ark. 402.

Henderson & Campbell, for appellee.

Knowing the disposition of the mare, it was incumbent on appellant in the exercise of ordinary care to tie the animal in such way that she could not break loose, or to bar the stall so that she could not get out. Failure to do so was negligence on appellant's part. That the animal died from the effects of the injuries received is settled by the evidence and the jury's verdict. The verdict, being supported by evidence will not be disturbed. 76 Ark. 327; 75 Ark. 262; 73 Ark. 383; 67 Ark. 401.

HILL C. J. Mr. Justice Wood.

OPINION

HILL, C. J.

Acree ran a hack between Maynard and Pocahontas, arriving each day at Pocahontas about eleven o'clock in the forenoon and departing at about one o'clock in the afternoon. He had two teams and alternated in the use of the same, leaving one in the livery stable of Bigger at Pocahontas while he was using the other. Pittman was hostler for Bigger, and was in charge of the stable. When Acree came in each day, he tied the horses in the stalls himself or Pittman did so. At the time in question, Acree brought in his team and tied them in their stalls himself. In the afternoon of that day, Pittman took the team out to water them, and returned them to the stable and tied them in the same manner that Acree had tied them. In the night Pittman heard a noise, and going in the stable found that one of Acree's horses was loose and standing in another stall. He tied it in that stall with the same rope that it had been previously tied with in the other stall. He did not at that time discover that the horse was injured; but the next morning he discovered that it had been hurt, apparently kicked on the leg, and he felt sure it had been kicked by its mate, as it was the only other horse in the stable. He and Acree treated the horse for several days when it died. Acree brought suit against Bigger for the value of the horse, alleging that it had been injured, and died as a result thereof, through the negligence of Bigger in permitting the horse to run loose in the stable among other horses confined therein, as a result of which it had been kicked and injured, from which injuries it died. Bigger denied negligence, and the case was tried upon this issue, resulting in a verdict for Acree; and Bigger has appealed.

The only testimony as to the care of the animal was that of Pittman, called by the plaintiff. He testified that he tied the mare in the stall with the same rope and in the same manner that the owner had tied it earlier in the same day and that this was the usual way that it had been tied theretofore; that this mare had been in the habit of breaking loose at night, and he used a small rope with which to tie her, for the reason that if a larger rope had been used she might have broken her neck or choked herself to death. That he had not tied a...