Lloyd v. Bowen

• Decision Date: 10 November 1915
• Docket Number: (No. 336.)
• Citation: 170 N.C. 216,86 S.E. 797
• Parties: LLOYD . v. BOWEN.
• Court: North Carolina Supreme Court

86 S.E. 797

170 N.C. 216

LLOYD .

v.BOWEN.

(No. 336.)

Supreme Court of North Carolina.

Nov. 10, 1915.

Appeal from Superior Court, Forsyth County; E. B. Cline, Judge.

Action by J. J. Lloyd against R. J. Bowen. Judgment for plaintiff in the county court was affirmed by the superior court, and defendant appeals. No error.

The plaintiff, on February 8, 1915, was walking on the sidewalk of Main street in Winston-Salem, when he was knocked down and seriously injured by a runaway horse owned by the defendant. He brought his suit on the 29th of April following, in the Forsyth county court, to recover damages for the injuries he had sustained. The specific allegations of negligence in the complaint are in effect that defendant was negligent in that he tied his horse to the dead limb of a tree in an open space, unprotected by fencings or railings, near Liberty street, which was a populous and a much traveled street; that after tying him at this place, he permitted him to remain standing there nearly all day without food, care, or attention, and, it being a cold day, the horse became excited or restless, broke this dead limb, and ran away. There was evidence to the effect that the horse was a high-spirited animal, only about four years old, and had been brought in from the farm of the defendant on that morning and left standing in front of defendant's stables hitched to a dead limb, within 100 feet of Liberty street and in plain view of that street, without any barrier or fencing between the horse andthe street. It was also in evidence that the horse had stood there all day, and until the afternoon without any food, care, or attention; that for several hours previous to his breaking this dead limb, he was rearing and jumping and kicking up his heels, trying to break loose. His actions attracted the attention of the clerks at work in the post office about a block distant. At about 3 o'clock in the afternoon, the horse pulled on his halter, which broke the dead limb from the tree, and he ran away, crossing the open space in this vacant lot to Liberty street, then he crossed Liberty street and went through a vacant space in the next block to Main street, where he struck the plaintiff.

The plaintiff sustained painful and serious injuries; he was picked up from the street in a practically unconscious condition, and was taken in an automobile to the hospital, and upon examination by the physicians it was found that about four of his front teeth were knocked out, and he was cut and bruised on his body—several of the cuts were in his face. The plaintiff, J. J. Lloyd, testified:

"I had a conversation with Mr. Bowen after the injuries. Mr. Bowen said that his horse was a high-spirited horse and had been standing there all the morning without anybody looking after it, and that, it being a little cool, he was full of life. He just broke the limb and ran away. He said the horse had been brought from his farm and hitched there that morning. He said he had not been fed. It was a chilly day in February."

O. E. Hamilton, witness for plaintiff, testified:

"On February 8th my attention was called directly to this horse. He was just playing and kicking and running around and raring, just playful is all I can say. I could not say how long he had been standing hitched there. The first time I noticed him that day was about 1 o'clock in the afternoon. I had not noticed him before, as my work in the morning is in the front part of the post office, and in the afternoon my work is in the back of the post office. I do not know how he was hitched to the tree. I saw-him when he broke loose. I was standing in the back door of the post office. The horse was playing and raring and kicking up, and at that time I saw him break loose, and I heard the limb pop and he dashed across the roadway and almost stopped, as the limb was hanging to the reins, and when the limb hit the ground it seemed to scare him, and he ran then as hard as he could go, and he ran through the alley by the post office. I did not see what happened on Main street. I took it to be a dead limb that he was hitched to as it had that appearance. It popped like a dead limb when it broke off, and it looked like a dead limb as the horse went by the alley."

The defendant testified for himself that he did not have the conversations with the plaintiff and his wife, as they stated on the stand, and he did not tell them, or anybody, what they had so stated, or any of it; that the horse was four years old, but not high-spirited, and rather lazy, and so gentle that ladies could ride him. He had a blanket on him the day he was hitched to the limb. It was a cold day. He had not been used very much. Witness did not tie him. The horse was hitched 100 feet from Liberty street, but there was a large house between him and the street, which cuts off the view from the street, and a horse stable cuts it off from the north. There was evidence, on the part of defendant, that the limb was green and sound, and the horse was hitched "high up" to prevent him from rubbing his mane. There was much other evidence for the respective parties of a similar kind.

Frank T. Baldwin, of Cana, and Lindsay Patterson, of Winston-Salem, for appellant.

Louis M. Swink, of Winston-Salem, for appellee.

WALKER, J. (after stating the facte as above). [1] The first three prayers for instruction involved substantially the rule of the prudent man, and from a careful inspection of the charge, it appears that it was fully responsive to them. It makes no difference in what form a request for instructions is given, or with what particular language it is expressed, the judge is not bound to adopt, the words of counsel but may choose bis own, provided he does not thereby weaken the force of the instructions which are requested to be given. If he gives them in substance, though not with literal conformity, it will be quite sufficient, as we have so often held. Chaffin v. Manufacturing Co., 135 N. C. 95, 47 S. E. 226; Wilkie v. Railroad Co., 127 N. C. 203, 37 S. E. 204;...