Copeland v. Draper
| Decision Date | 04 January 1893 |
| Citation | 32 N.E. 944,157 Mass. 558 |
| Parties | COPELAND v. DRAPER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
At the trial before a jury the plaintiff introduced evidence tending to show that he was a police officer of Boston; that, three or four weeks prior to the time when the plaintiff received the injuries hereinafter mentioned, the defendant, who was a livery stable keeper, furnished for hire to the city of Boston a horse to be used by the mounted patrolmen of Boston; that the horse was examined and tried at the defendant's stable by one of the mounted police officers of Boston, and selected by said officer, and taken for use by the city of Boston; that for several weeks thereafter the horse was ridden by this officer, who testified at the trial that the horse was free from all faults, and in every way suitable for the purpose for which it was hired; that the plaintiff, acting in the due discharge of his duty, mounted the horse and rode it towards the defendant's stable; that while the plaintiff was so riding the horse, and while he was in the exercise of due care, the horse became restive and uncontrollable, shook its head, bolted, and ran violently upon a sidewalk, threw the plaintiff, and fell upon him, breaking the plaintiff's leg, and otherwise injuring him; that the plaintiff had had experience in riding and managing horses before the injury that the horse had been ridden by other patrolmen, and had not shown any symptoms of viciousness or bad habits, or defects in any way; that there was a scar in the mouth of the horse, which scar "looked as if caused by a cut." There was no further evidence concerning the scar. The plaintiff testified, on cross-examination, that he thought the horse, at the time of the accident, must have had a fit or blind staggers, or something of that kind. At the close of the plaintiff's evidence, the defendant requested the court to rule that, on all the evidence, the plaintiff could not recover. In reply to a question put by the court, the counsel for the plaintiff stated that there was no evidence upon which it could be found by the jury that the defendant prior to the accident, knew, or by the exercise of reasonable care or diligence could have known or discovered, that the horse was as described in the declaration. The plaintiff claimed, and requested the court to rule, that the defendant was bound to furnish a suitable horse and that if the horse at the time of the accident, was unmanageable and unsuitable, the defendant was liable to the plaintiff in the action, without regard to the defendant's knowledge or negligence; and that it appearing that the horse was unmanageable at the time of the accident a prima facie case was made out as to the negligence of the defendant. The court declined to rule as requested by the plaintiff, and ruled that, upon all the evidence, the plaintiff could not recover. At the court's direction, the jury returned a verdict for the defendant.
John E. Hanly and John F. Libby, for plaintiff.
Horace G. Allen and Wm. R. Howland, for defendant.
Horne v. Meakin, 115 Mass. 326, the case relied on by the plaintiff, only decides that, if a party negligently furnishes an unsuitable horse, it is not a defense that he did not know that this horse was unsuitable. In the case at bar, negligence was excluded by the plaintiff's admission that there was no evidence that the defendant knew, or by the exercise of reasonable care could have known, that the horse was unsuitable, if in fact it was. Therefore in order to recover, the plaintiff must maintain that a livery stable keeper warrants or insures the suitableness of every horse which he lets.
No such liability is imposed on him by the fact that he follows a common calling, any more than it is upon every man who keeps a shop. Even in old times, the exercise of a common calling only required a man to show skill in his business. Fitzh.Nat.Brev. 94, D; Norris v. Staps, Hob. 210b 211; 3 Bl.Comm. 164; Rex v. Kilderby, 1 Wms.Saund. 311, 312, note 2. Common carriers were insurers, not because they had a common calling, but...
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Varas v. James Stewart & Co.
...to the defendant, or could have been known to him by the exercise of that care and diligence required by the law. In Copeland v. Draper, 157 Mass. 558, 32 N.E. 944, it held that the keeper of a livery stable does not, by letting a horse, warrant it to be free from defects of which he has no......