Brown v. Green
| Decision Date | 17 February 1899 |
| Parties | GEORGE C. BROWN v. THOMAS GREEN, and HARRY F. GREEN, trading as THOMAS GREEN & SON |
| Court | Delaware Superior Court |
Superior Court, New Castle County, February Term, 1899.
ACTION ON THE CASE (No. 87, November Term, 1897), to recover damages for personal injuries received by plaintiff in assisting in harnessing the horse of the defendants, which horse was alleged to be vicious.
The evidence of the plaintiff was that the defendants, who were engaged in the grocery business in the City of Wilmington owned a certain gray mare which was driven, by a colored boy named Henry, to the defendants' produce wagon. That the horse was kept at the Pioneer Club Stable on Orange street between Eighth and Ninth. That said stable was under the management of one Herdman, and that Thomas Green, one of the defendants, was a stock-holder in the same. That on the morning of August thirty-first, 1897, Herdman started to harness the horse at the request of the colored boy Henry and as his helper was not present and the horse being unruly Herdman requested George C. Brown, the plaintiff, who worked in a blacksmith shop on the opposite side of the street, to assist him in harnessing the horse. That Brown, although having frequently shod the horse in his blacksmith shop, knew nothing about the horse's bad traits, she having always been quiet while being shod by the plaintiff. That Brown went over to the stable and saw the horse and about that time Thomas Green, one of the defendants, came in. That Herdman had hold of the horse, and Brown was standing near the animal. That Green ran his hand down the horse's back and said, That Brown then got hold of the bridle and Herdman went to put the twitch on when, to use the words of the plaintiff, * * *
The witness, Charles H. Herdman, testified that the mare had been in his charge for about a year and a half, that at first he had no trouble with the animal, but about a month of two before the accident she began behaving badly when they would attempt to harness her. Witness could not say that the defendant had ever seen the mare behaving badly when being harnessed, except on the occasion of the injury to the plaintiff, but testified that he had told the colored boy Henry, who drove the mare for Mr. Green, to tell the latter that "the mare was bad and that she was not fit to be handled in the stable where there were other horses."
Another witness testified that he had seen the mare before the time of the accident, when they were attempting to harness her, rear and pitch and drag the men off their feet. That she would strike at them with her feet, that he had seen them reach over from another stall to feed her, being afraid to go into her stall.
Mr. Bird for the defendants moved for a non suit, on the ground that assuming the mare was vicious there had been no proof to bring home the knowledge of that fact to the defendants.
Non suit refused.
Thomas Green, one of the defendants, was produced and Mr. Bird proceeded to question him with regard to how the mare acted when standing in front of his grocery store on Eighth street along the electric car tracks, stating that his object was to show that the mare was quiet when being driven around the city, thus negativing the plaintiff's proof as to viciousness.
Mr. Cooper, for plaintiff, objected to the proof as irrelevant; proof of the plaintiff having been confined to viciousness in the stable when being harnessed.
Whatever proof there may have been as to the viciousness of the mare, it has been confined in this case to the stable, and we think the testimony which you propose to offer is inadmissible.
The defendants excepted.
David Ford, after testifying that his business was breaking colts, runaway horses, kickers, etc., in which business he had been engaged since 1857, was asked by Mr. Bird whether or not the mare in question had been placed in his charge by Mr. Thomas Green on September 2, 1897, two days after the accident, and what was her conduct on that occasion.
Objected to by counsel for plaintiff as not in reply to plaintiff's proof, which extended only up to the time of the accident.
We think that the time within which the witness is about to testify is sufficiently close to the time of the accident to show the vicious tendencies of the mare, if she had such. He must testify as to the condition in which he found her at that time, and he must be held to that. We admit this, thinking that the time which had elapsed between the time of the accident and the time when she was placed with the witness was not sufficiently long for any change in the character of the animal by means of training or anything of that kind.
The defendants excepted.
The defendants testified that they had never been notified by the colored boy who drove the mare, that she was in any way vicious; that they had no knowledge of her being vicious; and one of the defendants, Thomas Green, testified that he had simply noticed that when she was being bridled she would hold her head high. He denied that he rubbed his hand down the mare's back at the time of the accident and spoke the words attributed to him by the plaintiff.
PLAINTIFF'S PRAYERS.
The plaintiff prayed the court to instruct the jury in part as follows:
If the jury shall believe from the evidence that the said Thomas Green was familiar with the vicious nature of the horse, or by the exercise of ordinary diligence ought to have known of its vicious nature, and stood by and permitted the said George C. Brown to assist his agent in harnessing it without warning him of the nature of the said horse, and the said plaintiff was injured thereby, the said defendants were guilty of negligence and the plaintiff is entitled to recover.
Ray on Negligence, 604-605.
If the jury shall believe from the evidence that the said Thomas Green was familiar with the vicious nature of the horse, or by the exercise of ordinary diligence ought to have known of its vicious nature, and that he requested the said George C. Brown to assist in harnessing the said horse or stood by and assented to such request made by his agent, the said George C. Brown thereby became the agent of the said Thomas Green & Son, and it was the duty of the said Thomas Green to fully advise the said George C. Brown of the vicious nature of the animal, and if he failed to do so, it was such negligence as would entitle the plaintiff to recover.
Where the knowledge of the vicious propensity of an animal is brought home to a servant or agent who has been placed in charge of the animal by the master, the latter will be chargeable with notice.
Ray on Negligence, 624-625; Baldwin vs. Casella, L. R., 7 Exch., 325.
If the jury believe from the evidence that the said Thomas Green knowing the animal to be vicious, advised the plaintiff to take hold...
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