Hope v. Valente

• Decision Date: 19 December 1912
• Citation: 86 Conn. 301,85 A. 541
• Parties: HOPE v. VALENTE.
• Court: Connecticut Supreme Court

85 A. 541

86 Conn. 301

HOPE

v. VALENTE.

Supreme Court of Errors of Connecticut.

Dec. 19, 1912.

Appeal from Superior Court, New Haven County; William H. Williams, Judge.

Action by Thomas Hope against Pasquale Valente. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

Spotswood D. Bowers, of Bridgeport, and Benjamin Slade, of New Haven, for appellant.

George E. Beers and Frederick C. Russell, both of New Haven, for appellee.

THAYER, J. The plaintiff alleges that he was kicked by a horse of the defendant which had been "negligently left unattended, unguarded, and unharnessed and tied to the rear of a wagon" in Orange street. He claimed, further, that the horse was a vicious, kicking horse, and that the defendant knew of this vice. The complaint has been construed as charging two acts of negligence. Hope v. Valente, 84 Conn. 248, 250, 79 Atl. 583. There was evidence tending to prove that the defendant was engaged in constructing two houses on Orange street, that at the time of the plaintiffs injury there were several piles of brick about four feet high in the street on the grass plat between the sidewalk and the curbstone, and that there were heaps of sand, broken bricks, and pieces of lumber blocking the sidewalk in front of the premises. In the gutter of the street about in front of the premises stood the defendant's wagon with a horse hitched thereto, and to the rear of this wagon was a chestnut mare belonging to the defendant unharnessed and tied by a halter to the rear of the wagon from which it was feeding. The plaintiff claimed that in passing along the street he turned from the obstructed sidewalk into the street proper; that, having passed at the rear of the chestnut mare, he turned to pass parallel with her at a distance of about 10 feet, when she swung around and kicked him.

The defendant assigns as error the court's instruction that, if the jury found it proven that the defendant's horse "was left by him unattended, unguarded, and unharnessed and tied to his wagon at the time and place in question, they should then determine whether in so doing he was negligent—that is, whether he acted as a reasonably prudent man would have acted under the circumstances"—and that if they found that the defendant so left the horse and was in so doing negligent, and the plaintiff without negligence on his part was kicked by it, he might recover. This plainly left it for the jury to determine whether it was negligence to leave the horse tied to the wagon in the street, although she was gentle and free from vicious habits. This is the precise ground of the defendant's complaint of the instruction. It is said that, as the horse is a domestic animal not naturally vicious or inclined to mischief, an owner is not negligent in leaving it tied in the street, unless the individual horse so left is vicious, and the owner knows it. But a person may be negligent in the use of an instrument which in itself is entirely harmless. We have said in the case of a runaway horse that it was a question for the jury whether it was negligence to leave the horse unhitched in the street under circumstances disclosed by the evidence, regardless of its habit of running away. Haywood v. Hamm, 77 Conn. 158, 160, 58 Atl. 695. Under the plaintiff's claim in the present case, the defendant was not using the street for the purpose of travel for which it was provided. The horse was not under the restraint which it would have been if attached in the ordinary manner to a vehicle. It was unharnessed. It was feeding, which might or might not render it impatient of strangers in its vicinity. It was tied to the wagon so that it could not escape if startled at its feeding by the approach of passers-by. The sidewalk was obstructed so that travel might thereby be diverted to the traveled part of the street in the vicinity of the horse. Under the facts claimed to have been proved, it was proper to leave it to the jury to determine whether, regardless of the viciousness of the defendant's horse, he was negligent in leaving it in the street in the manner claimed.

Upon the question of the defendant's knowledge of the...