Forney v. Geldmacher

• Decision Date: 31 October 1881
• Citation: 75 Mo. 113
• Parties: FORNEY v. GELDMACHER, Appellant.
• Court: Missouri Supreme Court

75 Mo. 113

FORNEY

v.GELDMACHER, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Jasper Circuit Court.--HON. JOSEPH CRAVENS, Judge.

AFFIRMED.

Galen Spencer for appellant.

Clark Craycroft for respondent.

HENRY, J.

In plaintiff's petition, it is alleged, that there was a span of horses, attached to a wagon, hitched to a post in front of defendant's business house in the city of Joplin, and that defendant, by means of a hose, while sprinkling water on his pavement, “willfully, maliciously, negligently and without reasonable cause, intending to injure plaintiff and others,” turned the hose and threw a stream of water upon said horses, by which they were frightened and broke loose, and, running down a street of said city, collided with plaintiff's horse and wagon, then being driven by plaintiff's servant, whereby the injury complained of was occasioned. The evidence is not preserved by the bill of exceptions, but it stated that, on the part of plaintiff, it tended to sustain the issues on his part. The court refused to instruct the jury, at the close of plaintiff's evidence, that, on the pleadings and evidence, he could not recover, but for plaintiff, instructed the jury, that if defendant willfully and intentionally threw the water upon or under the horses, which frightened and caused them to break loose and run through the street, and they ran against plaintiff's wagon, they should find for plaintiff; but that he could not recover unless the defendant willfully and intentionally threw the water on the team. The plaintiff had a judgment, from which defendant has appealed.

The horses which ran against plaintiff's horse and wagon, were not the property of defendant, but of another. This, however, is wholly immaterial in the consideration of the question involved. The defendant, as the jury found, willfully turned the hose upon the horses, which were hitched to the post, and the injury to plaintiff's property was a direct result of his act. While one is not presumed to know the disposition or habits peculiar to particular animals, but only the disposition and habits which are common to that species of animal, every one is chargeable with notice of the generic disposition of any kind of animal, wild or tame, to stray, and of its liability to take fright. This is substantially the doctrine stated by Shearman & Redfield in their work on Negligence, section 188, cited by appellant's counsel. In the celebrated case of Scott v. Shepherd, 3 Wilson...