Caldwell v. Nichol

• Decision Date: 30 January 1911
• Citation: Caldwell v. Nichol, 134 S.W. 622, 97 Ark. 420 (Ark. 1911)
• Parties: CALDWELL v. NICHOL
• Court: Arkansas Supreme Court

134 S.W. 622

97 Ark. 420

CALDWELL v. NICHOL

Supreme Court of Arkansas

January 30, 1911

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge reversed.

Judgement reversed and cause remanded.

Crawford & Hooker, for appellant.

1. Under the undisputed evidence the court should have directed a verdict for the appellant. The law holds a livery stable keeper only to the use of ordinary care of the animals placed in his care, and he is liable for injuries to such animals only when such injuries are occasioned by his negligence. 87 Ark. 318-20; 37 S.W. 65. Appellee not only knew what kind of stall the horse was kept in, but he had himself selected it and had kept it there for two years before appellant leased the stable.

2. The court erred in admitting hearsay evidence, in that appellee was permitted to state before the jury what the negro he found at the stable said about the accident. It was not admissible as a part of the res gestae. 3 Wigmore on Evidence, §§ 1751, 1749, 1750.

White & Alexander, for appellee.

1. There was sufficient to go to the jury, and their verdict on conflicting testimony should not be disturbed. 73 Ark. 377; 75 Ark. 111.

2. Testimony as to what the negro said was properly admitted. He was in charge of, and the only person in, the stable at the time the accident occurred. 66 1a. 622.

OPINION

MCCULLOCH, C. J.

The defendant, D. A. Caldwell, is the keeper of a livery stable in the city of Pine Bluff and stabled the plaintiff's horse for hire. The horse had been kept in the same stable and in the same stall before defendant purchased the stable. Early one morning, before daybreak, the horse was found with a broken leg, and had to be killed, as the veterinarians who were called in decided that the fractured limb could not be successfully treated.

The plaintiff sues to recover the value of the horse, alleging that the injury occurred by reason of negligence on the part of defendant in failing to keep the horse in a suitable stall. The stall was provided with a lattice gate about four feet high, being about 12 or 15 inches above the floor, the lattices being several inches apart, so that a horse's foot could go through the spaces between, and it is alleged in the complaint that the negligence of the defendant consisted of having a gate of that kind swung above the ground in the manner indicated, and that, by reason of such improper construction of the gate and the distance from the ground, the horse got his foot under the gate or through the opening between the lattices, and, in trying to free himself broke his leg. The defendant answered, denying the charge of negligence in the construction of the gate and denying that the horse was injured by getting his foot hung under the gate or through the openings therein. A jury trial resulted in a verdict for the plaintiff, and defendant has appealed.

No witness who testified in the case saw the horse in the position it was in when first discovered with the fractured limb. A negro named Tow Morrow, who was night-watchman in the stable, first discovered the horse's condition and reported it by telephone to Dr. Smith, a veterinary, and the latter reported the matter to the plaintiff and defendant. Dr. Smith was the first to get to the stable, and he found the horse standing outside of the stall and in another part of the stable. The leg was broken above the hock--a compound fracture. There were no scratches nor bruises on the horse except the broken skin where the bone protruded, and there appeared to be no hair rubbed off at any place. It was largely a matter of speculation among the witnesses as to the precise manner in which the leg came to be broken. The theory of the plaintiff was that the horse got his foot or leg through one of the spaces between the lattices, and, in trying to...