Kern v. Snider

• Decision Date: 10 April 1906
• Docket Number: 1,219.
• Citation: 145 F. 327
• Parties: KERN et al. v. SNIDER.
• Court: U.S. Court of Appeals — Seventh Circuit

145 F. 327

KERN et al. v. SNIDER.

No. 1,219.

United States Court of Appeals, Seventh Circuit.

April 10, 1906

Frank M. Hoyt, for plaintiffs in error.

Morse Ives, for defendants in error.

Before GROSSCUP and BAKER, Circuit Judges, and SANBORN, District judge.

SANBORN District Judge.

The injury complained of was sustained June 4, 1903, about 3 p.m Defendants' servant, engaged in taking orders for the sale of flour, was using a horse and buggy in the business. He visited a bakery at No. 1000 Lake street Chicago, and hitched the horse in front of a saloon opposite the bakery, near the corner of Lake street and Western avenue. There was a double-track surface street railway on Western avenue, and the cars ran each way, some four or five minutes apart. There was also an elevated railway in Lake street, the cars running every five or six minutes, with from two to four cars to the train; also a surface street car line on Lake street, on which the cars run every six or seven minutes. The elevated trains make a great noise. The horse was 10 or 12 years old, very gentle, and accustomed to the sights and sounds of the city. He was accustomed to go between railroad tracks and between and about automobiles and never had given any trouble; was not afraid of electric cars elevated trains, or automobiles; papers blowing towards him would not occasion fright. When left standing on business streets he was always hitched, but on others was often left without tying. On the day mentioned the horse was tied by putting the tie strap, hitched to the ordinary weight, through a ring in the cement sidewalk, about a foot above the roadway, and then up to the bridle. The strap had been in use about a year, and had been used some 2,000 times. It had been partly torn through, and, according to some of the testimony, was so rotten that it could be pulled apart with the fingers. At the time the horse was hitched some boys were playing near by, throwing small stones from one to the other, and were cautioned by the salesman not to hit the horse. Some of the witnesses noticed the horse standing hitched in front of the saloon, but no one noticed him when he broke away, after which witnesses in the saloon saw him on the cement walk, with his head close to the saloon window. He then sprang up or reared as if he was going through the window, and then turned and ran east on the sidewalk on Lake street. The plaintiff, a boy then seven years old, came out on the walk and was struck on the head by one of the buggy wheels, causing the injury complained of. After running a block or so the horse slowed down and was readily caught. After the accident the boy was unconscious for four days, but was out again in about three weeks. Plaintiff gave testimony to show a permanent injury, but the court charged the jury, and on the motion for new trail afterwards held, that all the evidence showed only a temporary injury; as already stated the plaintiff accepted a judgment for $2,000, which defendant insists is still too large.

Several errors are assigned, of which only two were pressed on the argument. No exception was taken to the charge, but defendants requested the following instruction:

'Even if you find that the defendants' servant Neumann was negligent in tying the horse in the manner in which, and with the strap with which, the horse was tied, yet, if you find that the fright of the horse was so great that no strap, such as an ordinarily prudent man would have used, would have held the horse, your verdict will be for the defendants.'

The instruction asked and refused was not clearly applicable to the facts shown, or to any reasonable inferences from such facts, though perhaps as applicable as any which could have been drawn. Taking a view of the evidence most favorable to defendants in error, the following facts appear: The gentle character of the horse, the fact that he was not afraid of cars or automobiles, the noisy place, the boys throwing stones, the caution given them, the weak strap, tied low, broken before the horse reared, the season of the year, and the fright of the horse. These facts, and all reasonable inferences from them, were before the jury. Among the inferences which the jury might reasonably draw, it may be said that it is an unusual thing for a gentle horse, or any horse, to get on the sidewalk. In the absence of direct evidence of what caused the fright, it may have resulted from fighting flies, and thus getting a forefoot over the strap, followed by such a strain on the strap as would part it, in its...