Healey v. P. Ballantine & Sons

Decision Date10 June 1901
PartiesHEALEY et al. v. P. BALLANTINE & SONS.
CourtNew Jersey Supreme Court

Error to circuit court, Essex county.

Suit for injuries by Mary Healey and John Healey against P. Ballantine & Sons. From a judgment in favor of plaintiffs, defendant brings error. Affirmed.

Argued February term, 1901, before DEPUE. C. J., and DIXON, COLLINS, and HENDRICKSON, JJ.

C. Lincoln Dewitt and Grant C. Pox, for plaintiff in error.

Benjamin M. Weinbergand Samuel Kalisch, for defendants in error.

DEPUE, C. J. This was a suit by husband and wife to recover damages for an injury done to the wife. Mary Healey, the wife, on October 14, 1898, was walking along the sidewalk on Christie street, a public street in the city of Newark. While she was in the lawful use of the street, the horse of the defendant was being led along the sidewalk by a halter, by a servant of the defendant. The horse had no other harness. The plaintiff testified that she came from Ferry street into Christie street, and walked along the sidewalk on Christie street; that on the outer edge of the sidewalk, and running parallel with Christie street, is a wooden railing, separating the sidewalk from the street; that while she was walking along the sidewalk she saw a man leading a horse by a halter coming towards her on the sidewalk; that, as the man and horse approached her, she attempted to get out of the way of the horse, by going a little further out towards the railing, when the horse kicked her. For the personal injuries she sustained this suit was brought, and resulted in a verdict in favor of the plaintiffs for personal injuries to the wife and for the damages sustained by the husband. There is no controversy as to the manner in which the accident happened.

The plaintiffs neither alleged in the declaration nor proved at the trial any mischievous propensity on the part of the defendant's horse. The contention on the part of the defense was that, in order to allow the plaintiffs to recover damages for the personal injuries, a vicious or mischievous propensity on the part of the animal must be shown, and the scienter established. This question was raised first on motion to nonsuit, which was denied, and exception taken. The learned judge in his charge to the jury dealt with this subject as follows: "It is said by the defendant that the plaintiffs ought to prove to you that the defendant knew that the horse had this vicious propensity,—in common language, that the defendant knew that the horse was a kicker. I charge you that that is not the law, and that it is not necessary, in order for the plaintiffs to recover, for them to show that the defendant corporation knew of this bad propensity, if it was a bad propensity, of the horse. You have the right to consider, as a matter of common observation, that horses will kick, and that even a kind and gentle horse will on occasion kick. Now, having that in view, and remembering the situation of Christie street as far as you have it from the evidence, did the stableman act negligently and carelessly in leading the horse along the sidewalk so near to the plaintiff Mary Healey that the horse could reach her with his hoofs?" To this instruction exception was also taken, and errors have been assigned accordingly.

To sustain the contention of the defendant's counsel, reliance is placed on Cox v. Burbidge, 13 C. B. (N. S.) 430. In that case it appeared that the defendant's horse, being on a highway unattended, kicked the plaintiff, a child, who was playing there. There was no evidence to show how the horse came on the spot, or what induced him to kick the child, or that he was accustomed to kick. It was held that there was no evidence from which a jury would be justified in inferring that the defendant had been guilty of actionable negligence. The familiar doctrine of the common law is that the owner of a domestic animal is not responsible for injury done by it, unless he has knowledge of the propensity or vice which induces the animal to do the injury. The court, in disposing of the case, dwelt mainly on the fact that there was no evidence of an actionable wrong on the part of the owner of the animal. Erie, C. J., said: "To entitle the plaintiff to maintain the action, it is necessary to show a breach of some legal duty due from the defendant to the plaintiff, and it is enough to say that there is no evidence to support the affirmative of the issue that there was negligence on the part of the defendant for which an action would lie by the plaintiff. The simple fact found is that the horse was on the highway. He may have been there without any negligence of the owner. He may have been put there by a stranger, or might have escaped from some inclosed place without the owner's knowledge. To entitle the plaintiff to recover, there must be some affirmative proof of negligence in the defendant in respect of a duty owing to the plaintiff." In a later case (Lee v. Reilly, 18 C. B. [N. S.] 721), through a defect of fences, which it was the duty of the defendant to repair, his mare strayed in the nighttime from his close into an adjoining field, and so into the field of the plaintiff, in which was a horse. From some unexplained cause the animals quarreled, and the result was that the plaintiff's horse received a kick from the defendant's mare which broke his leg, and he was necessarily killed. It was held that the defendant was responsible for his mare's trespass, and that the damage was not too remote. In that case there was no proof of a vicious propensity on the part of the horse, nor that the defendant's animal was vicious, and that the defendant knew it, but the liability of the defendant was put upon the ground that the animal was trespassing on the plaintiff's close, and that the foundation of the cause was negligence on the part of the defendant in neglecting properly to keep up his fences, by means of which his mare strayed from his close and injured the horse. Erie, C. J., sat in both of these cases, and took part in the decision of each. In Ellis v. Iron Co., L. R. 10 C. P. 10, the defendant's horse injured the plaintiff's mare by biting and kicking her through the fence separating the plaintiff's land from the defendant's. It was held that the defendant was liable in damages, apart from any question of negligence on its part. The ground of that decision is clearly stated in the opinion of Keating, J., to be this: "The horse, it is found, kicked and bit the mare through the fence. I take it that the meaning of that must be that the horse's mouth and feet protruded through the fence over the plaintiff's land, and that would, in my opinion, amount in law to a trespass." In Hammack v. White, 11 C. B. (N. S.) 588, the defendant was riding a horse which he had recently bought, and took him out to try him. From some unexplained cause, the horse became restive, and, notwithstanding the defendant's well-directed efforts to control him, ran upon the pavement and killed a man. It was held that these facts disclosed no evidence of negligence which the judge was warranted in submitting to the jury. But the court expressly rested that result on the fact that the defendant had used his utmost efforts to prevent the animal from getting on the pavement. Williams, J., in delivering judgment, said: "It is said that prima facie the defendant was guilty of negligence because he was wrongfully on the foot pavement; but the fact of his being on the foot pavement is nothing, unless he was there voluntarily; and, to say the least, it is quite as cousistent with the facts proved that he was there involuntarily as that he was there by his own mismanagement." Willes, J., said: 'The circumstance which very much weighed with me was that here was a man riding on the foot pavement, and therefore prima facie in the wrong. But then it must be remembered that the witness who proved that fact proved that he was there against his will, that the horse showed some symptoms of running away, and that the defendant was doing his best to hold him in, and in fact doing all he reasonably could to prevent the accident. He was there by the will of a horse which was running away with him, and resisting his efforts to restrain him." Keating, J., said: "If the evidence had shown that this horse was a quiet and manageable horse, and that the deceased, at the time he met with the injury which resulted in his death, was walking on the foot pavement, I must own I should have thought that there was prima facie enough to call upon the defendant to show that he had used due care and skill, because then it would have been more consistent to assume that the accident arose from his want of care and skill. But here the evidence gets rid of that difficulty." Mr. Bevin, commenting on these cases, used this language: "Although, when a horse is in a place where it has a right to be, any disposition to kick that it may suddenly manifest does not import a liability on its owner, when the horse is where it should not be, and kicks, the kicking is not so far remote from what is to be expected from the natural disposition of horses that the injury cannot be said to follow in the natural and obvious sequence from the original wrongful act which allowed the horse to get where an opportunity of doing injury is given." 1 Bevin, Neg. p. 97. The same principle is laid down in the American and English Encyclopedia of Law in these words: "If domestic animals are rightfully in the place where they do the injury complained of, the owner will not be liable, unless he had knowledge of the vicious propensity of such animals, and, in an action for such injuries, knowledge on the part of the owner must be alleged and proved." 2 Am. & Eng. Enc. Law, 364. In Dickson v. McCoy, 39 N. Y. 400, which was an action for an injury to the plaintiff by the horse of the defendant, the plaintiff, a child of 10 years, was passing the stable of the defendant, upon the sidewalk of...

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    ...sort, and was it directed or participated in by the municipality? On this first question we are refered to Healey v. P. Ballantine & Sons, 66 N.J.L. 339, 49 A. 511, 512 (Sup.Ct.1901). There a horse, which kicked the plaintiff, was being led along a sidewalk. Quoting words from 1 Beven, Negl......
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