Horne v. Meakin

• Decision Date: 26 June 1874
• Citation: 115 Mass. 326
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: James W. Horne & wife v. William Meakin & another

115 Mass. 326

James W. Horne & wife v. William Meakin & another

Supreme Court of Massachusetts

June 26, 1874

[Syllabus Material] [Syllabus Material]

Suffolk. Tort with a count in contract to recover damages for an injury to the female plaintiff, by being thrown from the defendants' carriage. Trial in the Superior Court before Putnam, J. who allowed a bill of exceptions in substance as follows:

The case was submitted to the jury only upon the amended count in tort hereafter mentioned. It appeared in evidence that on Saturday, June 29, 1872, the father of James Horne, one of the plaintiffs, who lived in Canton, went to the defendants who keep a livery stable in Canton, and engaged a horse and carriage for his son, to be used in a funeral procession for the next day. The deceased was the husband of a sister of the plaintiff, James. The plaintiffs, their child, and its grandmother rode in the carriage on Sunday from the house to the graveyard, and, on their return home, after stopping on the way at the house of a friend to get a glass of water, the horse became frightened at some object and ran away. The carriage was broken, and the female plaintiff was thrown out and injured. Notice was thereupon sent to one of the defendants, who came and took home his horse and carriage.

The father testified that as agent of his son, who had requested him to hire a horse for him to go to the funeral, he went to the defendants' stable and engaged a horse for his son kind and gentle, to go in a funeral procession with his family on the next day, Sunday.

The plaintiff James testified that he did not send his father to these defendants to engage the team. The father testified further that he went on Sunday to the stable and got the team, which was delivered to him by one of the defendants', the same one of whom he had engaged the horse and carriage, and the same team which he had engaged the day previous, and drove it to his son's house, when his son took it and went with his family to the funeral; that the man told him the horse was good and gentle, and would stand without hitching. The plaintiff, James, testified that on the way home the horse became frightened from some cause unknown to him, and ran at great speed across two railroad tracks, and the carriage then upset and threw them out; that he was used to driving a horse, and exercised due care. The plaintiffs also offered evidence tending to show that the horse had run away the day previous and on other occasions before and after the accident, that he was easily frightened, and would run away apparently without any reason, and that he was not a suitable horse to be let for the purpose indicated. The plaintiffs also offered evidence of the insecurity of the carriage.

The defendants offered evidence conflicting with that of the plaintiffs, and also tending to show that they had contracted with the father on Saturday, for a horse for him, but not for his son, and a different horse from the one which the plaintiffs had; that the father came on Sunday and asked for the horse which had been engaged, and while they were harnessing him, the father took a horse and carriage standing in the yard, which had been engaged by another person, supposing that it was the one intended for him, and without the knowledge or consent of the defendants, or any of their servants; that when the horse engaged by the father was got ready, they brought him out, and found that the father had driven off with the wrong horse. The defendants offered further evidence tending to show that the horse which the father took was kind and gentle, and also suitable for the purpose, and had been often driven by ladies; that the carriage had just been repaired; and this was the first time it had been out of the stable since its repair, and that it was in good order, and suitable for the purpose, and contended that the immediate cause of the overturning of the vehicle, was owing to the unevenness of the highway, or to the want of skill and proper care of plaintiffs, and through no fault of the defendants, or their horse, or carriage. There was also some evidence tending to show that the horse was frightened by a dog, and that the female plaintiff also took hold of the reins and her husband's arm, and that the horse was not properly managed.

After the plaintiffs' evidence was in, the court ruled at the request of the defendants, that the plaintiffs could not maintain their action on the original count in contract, or the count in tort; that they could recover in tort, on a count properly framed, and that the plaintiffs might amend their count in tort upon proper terms in conformity with this opinion.

The court intimated the form in which the amended declaration should be drawn, which was substantially as it was afterwards drawn, and, as it would take time to draw such an amendment, the court suggested that the trial had better proceed, and the amendment might be afterwards filed. No objection or exception was taken to this by the counsel for the defendants. The amended count was however in fact not filed or shown to the defendants' counsel, until the day after the verdict.

The court instructed the jury, upon the whole evidence, that, the defendants being public stable-keepers in the town of Canton if the plaintiff, James W. Horne, hired of them, through his father, a horse and carriage for the purpose of taking himself and his family to the funeral, they were bound to furnish him with a horse and carriage reasonably safe for such a purpose; that if the horse was not a safe horse, but was accustomed to run away without any apparent cause, and the plaintiff was himself a careful driver, and exercised due care on this occasion, and the accident would not have happened except for the fault of the horse in the particular named, the plaintiff could recover in this action, upon the amended count which was to be filed, for the injury...