Dolfinger & Co. v. Fishback
| Decision Date | 12 September 1876 |
| Citation | 75 Ky. 474 |
| Parties | Dolfinger & Co. v. Fishback. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON COMMON PLEAS COURT.
R. J ELLIOTT, For Appellants,
Shearman & Redfield on Negligence, secs. 7, 11, 20, pp. 8, 11, 12, 13 23.
Wharton on Negligence, sec. 40.
4 Q. B 693, Welfare v. Brighton R. R. Co.
35 N.Y 9-27, Ernst v. Hudson River R. Co.
53 N.Y. 654, Hackford v. N. Y. C. R. R. Co.
17 Mich. 99, D. & M. R. R. Co. v. Van Steinberg.
13 Com. B. N. S. 430, Cox v. Burbridge.
100 Mass. 208, Gaynor v. Old Colony R. R. Co.
ISAAC CALDWELL, MORRIS A. SACHS, For Appellee,
Shearman & Redfield on Negligence, sec. 11, pp. 11, 12, 13, secs. 483, 24.
| Civil Code, sec. 656. | 57 Penn. St. 172. |
1 Bosw. 357, Moore v. Westervelt.
8 Q. B. Law Rep. 161, Gee v. Metropolitan R. Co.
6 P. F. Smith, 297, Pittsburg & Connellsvillle R. R. Co. v. McClurg.
5 C. & P. 190, Illidge v. Goodwin.
11 Casey, 71, Penn. R. R. Co. v. Ogier.
32 Barb. 480, Castle v. Duryea.
39 N.Y. 400, Dickson v. McCoy.
The appellants were merchants doing business in the city of Louisville, and kept a small wagon in which to deliver parcels to their customers in the city.
October 1, 1874, while the driver of the wagon was out delivering goods, he drove to the front of a house on Broadway, and stopped to deliver some parcels purchased by the occupants of the house. There was no hitching-post in front of the house, and there being a city ordinance prohibiting the hitching of horses to shade-trees on the street, he detached one trace from the singletree, and drawing the horse back in the harness tied the driving-lines to that end of the singletree, and leaving the horse unattended started into the house. When he had gone a short distance from the wagon the horse took fright and ran away, and soon overtook the appellee, who was riding in a small wagon, and running against her wagon with great force broke it in pieces and injured her.
To recover damages for the injury thus inflicted she brought this action, alleging that the injury was caused by the negligence of the appellants.
They denied the charge of negligence, and that was the only issue in the cause.
The evidence conduced to show that the horse was kind and gentle; that he had been used for a considerable time in drawing the wagon about the city, and had often been left standing as on the occasion in question, but had never before run away, or attempted to do so; that the driver was ordinarily prudent and careful; that the horse was tied back with the lines, so that when he moved forward with the wagon he carried a considerable part of its weight on the bit. It also conduced to show that there was a hitching-post a short distance further along the street, but that the driver did not know it was there, and could not see it when approaching the place where he stopped.
The plaintiff read in evidence a city ordinance making it unlawful for the driver of any vehicle to be more than ten feet from his horses or other animals while harnessed to such vehicle upon the street. To the introduction of the ordinance the appellants objected and excepted.
Upon this state of the evidence the court instructed the jury " that to leave a horse attached to a vehicle on a public street in the city of Louisville, unattended, not held by any person, nor hitched or fastened to any thing or object other than the vehicle, is negligence."
That was substantially to instruct the jury to find for the plaintiff, which they did; and the appellants' motion for a new trial having been overruled, this appeal is prosecuted to obtain a reversal of the judgment for error in the above instruction.
That it is culpable negligence to leave a horse of vicious or even of unknown habits standing upon a populous street thronged with persons and carriages, without some one to watch and control him, is hardly open to serious question; and it may be that an instruction such as was given in this case may be given when the facts as just supposed are proved without contradiction. But there was no evidence in this case tending to show whether the population about where the accident occurred was dense or sparse, or whether there were many or few persons and vehicles abroad on the street in the vicinity at the time.
The jury therefore had the right from the evidence to find that the driver was a prudent person, and that the horse was of good habits and disposition, and that there were but few persons or vehicles on the street at the time the casualty occurred. The principle upon which the instruction was based would seem to be that no matter what may have been the character of the horse, or the number of persons then on the street near by, or how great the probability that the mode in which the driver attempted to secure the horse would be effectual, he was guilty of negligence, and that the court might so decide as matter of law.
All the authorities say that the question whether there was negligence in a given case is compounded of law and fact.
The theory of our judicial system is that questions of fact are for the jury and questions of law for the court. When therefore all the facts essential to the plaintiff's case are agreed, or established by uncontradicted evidence, nothing remains but for the court to decide whether there was negligence. But unless all the essential facts are agreed, or proved without contradiction, the court can not decide whether there was negligence or not.
In this case all the essential facts were not admitted nor proved without contradiction. There was no conflict in the evidence as to the habits or character of the horse, or as to the failure to hitch him to some other object besides the vehicle drawn by him, nor was it disputed that he was so left upon a public street in Louisville. But these were not all the facts upon which the question of negligence depended. Whether the appellants' driver used that care which the law made it his duty to use was not proved, except by inferences to be drawn from the other evidence.
It is the legal duty of every person having charge of a horse, in city or country, to apportion the care with which he handles him to the danger to be apprehended from a failure to keep him constantly under control. (Wharton on Negligence, sec. 47.)
He must use such care as is demanded by the circumstances which he knows or may reasonably believe surround him. In a crowded street the danger that an unguarded horse will take fright is much greater than in the country where there are but few persons or vehicles passing, and the danger of injury to others in case of fright is much greater in the former than in the latter case. It is therefore the duty of those riding or driving a horse in a...
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