Drew v. Gross
| Decision Date | 28 April 1925 |
| Docket Number | 18518 |
| Citation | 147 N.E. 757,112 Ohio St. 485 |
| Parties | Drew v. Gross. |
| Court | Ohio Supreme Court |
Animals - Liability of owner for negligently keeping - Question for jury - Anticipating that horse would stray from defectively fenced field - And collide with automobile on highway in nighttime.
1. The owner of a domestic animal is responsible for negligence in its keeping whereby damage is occasioned.
2 It is a question of fact for the jury whether an owner of horses who turns them loose unattended into a field adjacent to a much traveled highway In the nighttime, the fence of which field is in such defective condition that the horses may easily stray out onto the highway, could have anticipated that one et the horses would stray out onto the highway and collide with an automobile thereon.
The facts are stated in the opinion.
Mr Perry J. Bigham, for plaintiff in error.
Messrs Wade & Dillon, for defendant in error.
As the parties stand in this court in the same relation as they did in the trial court, the plaintiff in error will be called the plaintiff and the defendant in error the defendant throughout this opinion.
This was an action brought by the plaintiff to recover damages arising from injuries to an automobile owned by him sustained in a collision between the automobile and a horse upon the public highway. The case made by the petition is that, while the plaintiff's machine was being driven by his son along a public highway in the nighttime, a horse, which, owing to the negligence of its owner, the defendant, was loose within the limits of the highway, jumped into the automobile causing the machine to be ditched and damaged. The petition avers that this occurred while the son was driving the automobile in a lawful manner, without any negligence on his part, and avers that the negligence of the defendant consisted in turning the horse out into a field adjacent to the highway, which was a main market road running from Fostoria, Ohio, to Bettsville, Ohio, with no sufficient fence between the highway and the field to prevent the horse from wandering onto the highway.
The defendant answered, denying all acts of negligence, and averring that the plaintiff's son was driving the machine at the time of the accident at a very high and dangerous rate of speed, and that the negligence of the son was the sole cause of the injury to the automobile. The defendant also filed a counterclaim for damages to the horse. While the petition states that the horse jumped into the machine, the evidence tends to show that the horse suddenly leaped in front of the machine, and that, as claimed by the plaintiff, the machine was so close to the horse at the time that it was impossible, by the exercise of any skill, to avoid the collision.
On motion of the defendant the jury returned a verdict for the defendant by direction of the court. Thereupon the defendant withdrew his counterclaim for damages to his horse, and judgment was entered on the verdict in favor of the defendant. The Court of Appeals affirmed this judgment.
We have examined the record in the case and learn therefrom that there was substantial evidence tending to prove the allegations of the plaintiff's petition with respect to the defective fence. Photographs are attached to the bill of exceptions showing the defective condition of the fence, and a witness who lived nearby testified to its defective condition for a considerable period of time previous to the accident. Evidence was also given tending to show that the machine was being driven in a lawful manner at the time of the accident by the son of the plaintiff. There is also substantial evidence in the record tending to sustain the claims of the defendant that the automobile was being driven in an unlawful manner, that is to say, at a high and dangerous rate of speed, when the accident occurred, and that, had the car then been driven at a reasonable rate of speed, the accident might have been averted. The claim of the plaintiffs is that the trial court erred in directing a verdict, and that the Court of Appeals erred in affirming this judgment.
The action of both courts was based on a decision in Marsh v. Koons, 78 Ohio St. 68, 84 N. E., 599, 125 Am.St. 688, 14 Ann.Cas. 621, to which reference is made by the lower courts in disposing of the case.
The Marsh case, supra, was an action to recover damages for an injury received by one who was driving a horse and buggy along a highway in the daytime, when the horse became unmanageable and ran away, throwing the driver in the ditch. The accident was alleged to have been caused by the defendant's cow, which was lying across the highway just at the time when the horse was being driven past. The horse was driven close to the head of the cow, which suddenly got up from the road, whereupon the horse ran away. Judge Summers, who rendered the opinion in the Marsh case, supra, said that the circuit court affirmed the judgment of the court of common pleas in favor of the defendant on the ground of contributory negligence on the part of the plaintiff. In fact, the record in that case appears to us so different from the record herein that we think the Marsh decision not to be controlling here.
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