Hosmer v. Carney

• Decision Date: 24 February 1920
• Citation: 126 N.E. 650,228 N.Y. 73
• Parties: HOSMER v. CARNEY et al.
• Court: New York Court of Appeals Court of Appeals

228 N.Y. 73

126 N.E. 650

HOSMER

v.CARNEY et al.

Court of Appeals of New York.

Feb. 24, 1920.

Action by Martha Hosmer, as administratrix, against Byron C. Carney and others, as executors. From a judgment of the Appellate Division, Fourth Department (187 App. Div. 923,174 N. Y. Supp. 907), affirming a judgment for plaintiff entered on a verdict, defendants appeal.

Reversed, and new trial granted.

See, also, 178 App. Div. 955,165 N. Y. Supp. 1092; 179 App. Div. 960,166 N. Y. Supp. 1098.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Carlos C. Alden, of Buffalo, for appellants.

Hamilton Ward, of Buffalo, for respondent.

McLAUGHLIN, J.

This action was brought to recover damages for the death of plaintiff's intestate, alleged to have been caused by the kick of a vicious horse. The complaint alleged that the defendants' testator purchased the horse ‘as a kicker, * * * knew that the said horse was a violent kicker and vicious in his habits, and that he utterly failed and neglected to warn or advise the plaintiff's intestate of such fact.’ The answer put in issue this allegation of the complaint. The trial resulted in a verdict in favor of the plaintiff for $5,000. Judgment was entered thereon, and an appeal taken to the Appellate Division, Fourth Department, where the same was affirmed, one of the justices dissenting, and defendants appeal to this court.

[1][2][3] The rule which governs the liability of the owner of a domestic animal for personal injuries caused by it is well settled. He is not responsible for such injury unless the vicious propensities of the animal are known to him, or by the exercise of reasonable care the same could have been ascertained. Benoit v. Troy & Lansingburgh R. R. Co., 154 N. Y. 223, 48 N. E. 524;Copeland v. Draper, 157 Mass. 558, 32 N. E. 944,19 L. R. A. 283, 34 Am. St. Rep. 314. If such animal be delivered by him to another, he must inform such person of the animal's vicious characteristics, so far as known, or ascertainable by the exercise of reasonable care. McGovern v. Fitzpatrick, 148 App. Div. 34,131 N. Y. Supp. 1048. If such information be given, or the person to whom the animal is delivered knows, or before injury ascertains, the vicious character of the animal, the owner is not liable. Douglas v. Scandia Coal Co., 161 Iowa, 180, 141 N. W. 960;Sidwell v. Economy Coal Co., 154 Iowa, 475, 135 N. W. 59;Cooper v. Cashman, 190 Mass. 75, 76 N. E. 461,3 L. R. A. (N. S.) 209. The liability of the owner is predicated upon his omission of duty in not imparting the information, but such omission does not render him liable if the negligence of the injured party contributed to the injury. Judge Cooley, in his work on Torts (3d Ed.) at page 701, says, ‘The doctrine of contributory negligence applies to the case of injury by animals,’ and the same is asserted in section 639 of Shearman and Redfield on Negligence (6th Ed.), also in Labatt's Master and Servant (2d Ed.) § 1143, and has been recognized as a rule of law applicable to cases brought to recover for such injuries. Loomis v. Terry, 17 Wend. 496, 31 Am. Dec. 306;Williams v. Moray, 74 Ind. 25, 39 Am. Rep. 76;Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175;Bessemer Land Co. v. Dubose, 125 Ala. 442, 28 South. 380. Obviously, there can be no negligence on the part of the owner in not instructing a person as to that which he already knows; and if, before injury, such person ascertain all the information which could have been imparted to him, he is thereafter charged with knowledge thereof. He cannot complain of dangerous conditions of which he had become as fully informed as the owner. This seems too plain to require the citation of authorities, but see Douglas v. Scandia Coal Co., supra, and authorities there cited.

Keeping in mind the rules stated, and applying them to the uncontradicted facts in the case before us, I think it will at once become apparent that the judgment under review is erroneous and should be reversed.

[4] Henry Carney, the defendants' testator, entered into a contract with Everett Hosmer, plaintiff's intestate, by which the latter was to cultivate a farm belonging to the former, on shares, Carney furnishing the necessary horses. Some time in February, 1915, Hosmer informed Carney that he needed another horse on the farm; that he knew a horse which was ‘just what he wanted,’ and which could be purchased at a low price; that it was owned by one Rexicker; that he had spoken to him, and he said he would sell the horse; thereupon Carney, who was ill at the time and confined to the house, sent his son to see Rexicker, with the result that he drove the horse to Carney's residence. Carney had never seen the horse before, and knew nothing of it until that time, and then he only saw it driven back and forth in front of his house a few times immediately prior to the sale. The horse was purchased, put in Carney's stable, and the following morning delivered to Hosmer. Rexicker testified that immediately following the sale Carney asked him if the horse was all right, and he replied:

‘I said as far as I knew. He asked me if he had the heaves and anything of that description. I said he is a little bit mean. That is what I bought him for. I bought him to be watched.’

A few days after the horse had been delivered to Hosmer he asked Carney if he could have it clipped. This was consented to, and plaintiff's son clipped it, and while clipping either its head or one of its fore legs, it reared and knocked the clippers out of his hands. The son testified, and was not contradicted, that before the horse reared he cut its skin nearly an inch in length with the clippers and that made it jump. Immediately following the clipping the horse developed pneumonia, was taken to Carney's stable, and after the expiration of two or three weeks was returned to Hosmer, where it remained until after the accident in question. When the horse developed pneumonia a veterinary was called, and he advised putting on two mustard plasters, one on each side of the horse. They were put on, a paper put over the mustard and then a blanket thrown on and a surcingle put around the horse immediately in front of its hind legs. In tightening the surcingle the horse kicked, and this is the only evidence that the horse had ever kicked prior to the accident. Rexicker testified, ‘I don't remember the horse ever kicking.’ Another person who owned the horse for 8 or 9 years testified that he had never known it to kick, bite, strike, or display any vicious tendencies whatever. Plaintiff's witness Smith, who helped Hosmer on the farm, and at times took care of the horse, testified that up to the time of the accident he did not have trouble of any...