McBride v. Wallace
| Decision Date | 28 August 1908 |
| Citation | 117 N.W. 857,17 N.D. 495 |
| Court | North Dakota Supreme Court |
Rehearing denied October 8, 1908.
Appeal from District Court, Ramsey County; Cowan, J.
Action by John McBride against Robert Wallace. Judgment for plaintiff, and defendant appeals.
Affirmed.
Anderson & Traynor, for appellant.
An agister of cattle undertakes only such care as a man of ordinary prudence uses towards his own property under like circumstances. 1 Am. & Eng. Enc. Law, 589; 3 Cur. Law, 162 note 68; Revised Codes 1905, section 5472; Wood v Remick, 9 N.E. 831.
When defendant advises plaintiff of the accident to animal, burden is on the latter to show negligence. Calland v Nichols, 46 N.W. 631; 2 Enc. of Ev. 193; Wood v. Remick, supra; Elliott on Ev. Vol. 3, sections 1783 and 1785; Willett v. Rich, 7 N.E. 776; Foster v. Pacific Clipper Line, 71 P. 48; Stewart v. Stone, 14 L. R. A. 215; 2 Cyc. 323.
Negligence must be shown to be proximate cause of injury. 2 Enc. Ev. 196; 2 Elliott on Ev., section 1787; Revised Codes 1905, section 9522.
Plaintiff must show agister's negligence. 2 Cyc. 323; Wood v. Remick, supra; 2 Enc. of Ev. 193, 196.
It is competent to show agister's reputation for care. Revised Codes 1905, sections 5472, 6694; 3 Cur. Law, 162, note 68; 1 Am. & Eng. Enc. Law 589; 2 Cyc. 323; 5 Cyc. 217; 2 Enc. Ev. 201.
Evidence as to custom of neighborhood in handling stock is competent. Revised Codes 1905, section 5553; 5 Cyc. 219; Maynard v. Buck, 100 Mass. 40; 2 Enc. of Ev. 202; 3 Elliott on Ev. 1768, 1796.
The charge must correctly state the rule, viz: "Bailor must prove the contract of bailment, delivery and failure to return, or return in a damaged condition; it is then for bailee to show the manner of loss or injury, and if successfully done, bailor must show it due to bailee's negligence." 3 Elliott on Evidence, 1785, 1796; Revised Codes 1905, sections 5465, 5553; 5 Cyc. 219; 2 Enc. of Ev. 202.
Burke & Middaugh, for respondent.
Where property is bailed in good condition, and returned in bad, or not at all, bailee's negligence is presumed. 5 Cyc. 217; Canfield v. B. & O. R. R. Co., 93 N.Y. 553; Burnell v. N.Y. C. R. Co., 45 N.Y. 185; 6 Am. St. Rep. 61; Magnis v. Dinsmore, 56 N.Y. 168; Steers v. Liverpool, etc., Steamship Co., 57 N.Y. 6; 15 Am. St. Rep. 453; Fairfax v. N.Y. C. & Hud. R. R. Co. 67 N.Y. 11; Claflin v. Meyer, 75 N.Y. 260; 31 Am. St. Rep. 467; Schmidt v. Blood, 9 Wend. 524; Russell v. N. H. Steamboat Co., 50 N.Y. 121.
Motion for directed verdict must be made at close of all testimony. Illstad v. Anderson, 2 N.D. 167, 49 N.W. 659; Bowman v. Eppinger, 1 N.D. 21, 44 N.W. 1000; Conrad v. Smith, 2 N.D. 408, 51 N.W. 720; Colby v. McDermott, 6 N.D. 495, 71 N.W. 772; Tetrault v. O'Connor, 8 N.D. 15, 76 N.W. 225; First Nat. Bank v. Red River Valley Nat'l Bank, 9 N.D. 319; 83 N.W. 221; Haggerty v. Strong, 74 N.W. 1037.
Whether defendant used ordinary care was for the jury. Bullard v. Mulligan, 29 N.W. 404; Loveland v. Gardner, 4 L. R. A. 395; Welch v. Mohr, 28 P. 1060.
The complaint in this case alleges that a certain mare, the property of the plaintiff, was intrusted to the defendant to pasture for hire during the season of 1906, and that while she was in the defendant's possession, and under his control, and being so pastured for plaintiff, the defendant carelessly and negligently permitted her to run into a wire fence in his corral, whereby she was injured, and made valueless, and prays damages therefor. The answer admits the pasturing, but denies any injury through the fault or negligence of the defendant, and pleads a counterclaim for the sum of $ 3, the agreed price for pasturing. The case was tried to a jury, and plaintiff, being called as a witness, testified as to the value of the mare, her soundness, that he saw her in July, and did not see her again until October; that when he saw her on the latter date her leg was badly injured by a cut received from a barbed wire. He offered no evidence showing how she was injured, but showed that she was killed by the defendant as a result of the injury, and testified as to some other unimportant details about the contract of pasturage. On this evidence plaintiff rested his case, and the defendant submitted a motion to direct a verdict in his favor on the ground that plaintiff had failed to establish the allegations of his complaint by showing that the mare was cut, permanently injured, and made valueless by reason of carelessness and negligence on the part of the defendant. The court overruled this motion, to which ruling defendant excepted, and assigns the court's action as error.
It is unnecessary to consider this further than to say that the motion was not renewed after all the evidence of both parties was submitted, and, if the denial of the defendant's motion for a directed verdict was error, the defendant cannot avail himself of that fact without having renewed his motion after all the evidence was in. This court has so held in so many cases that it is unnecessary to again cite them. The evidence shows that the defendant took some horses belonging to the plaintiff to pasture for the season, and that some three or four days before the accident to the mare described occurred the defendant built a barb-wire fence around a corral near his buildings. The corral was about eight rods long, and between it and the pasture was a lane. Between the lane and the corral a gate was hung. On the day referred to, another patron of the defendant came for some horses which he had in the pasture, and drove some of the horses through the lane to the corral. The defendant with other persons went into the corral to look at the horses. It is not shown whether the defendant or some other person closed the gate between the corral and the lane, but it is shown that it was closed and left closed after the horses entered the corral with the knowledge of the defendant. The defendant and others were about the middle of the corral with the horses in one end when the latter made a sudden start, and ran around the corral. It was soon discovered that one of the legs of the mare in question was entangled in a barbed wire, but no one was able to testify whether it was a wire which had been left loose in constructing the fence, or whether she had been pushed into the fence by the other horses, or how the accident was caused. Immediately upon discovering her condition, defendant notified plaintiff, who inspected and left her with the defendant. There is some disagreement as to their conversation on this occasion, but we do not deem either version material. As we view the evidence, it resolves itself into the question as to whether it was negligence on the part of the defendant to permit a number of horses, some of which, including the mare in question, were unbroken, to be driven into a corral newly fenced with barbed wire and the gate leading therefrom closed. The question of negligence in such a case is one of fact, and, unless the evidence is so clear that the minds of reasonable and fair-minded men would agree on the subject, it must be submitted to the jury for determination. We think this is such a case. We cannot say as a matter of law that it either was or was not negligence for the defendant to permit a number of horses to be shut into a small corral newly fenced with barbed wire to which the horses had not been accustomed, and the evidence showing some of the horses unbroken. Carr et al. v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 16 N.D. 217, 112 N.W. 972; 2 Cyc. 323. The jury found for the plaintiff, and, unless error was committed in the exclusion or admission of evidence, or in the charge of the court, we cannot meddle with the verdict.
Error is assigned because the court did not allow a question as to defendant's reputation as a man of care in handling stock. It is conceded that the degree of care required by a depository for hire is ordinary care, and that ordinary care is such care or diligence as persons of ordinary prudence usually exercise about their own affairs of ordinary importance. Revised Codes 1905, sections 5472, 6694; 3 Current Law, 162, note 68. We see no error in excluding evidence as to his reputation in this respect. The facts relating to this accident were all before the jury, and in such a manner that their verdict must be based upon the facts of this case, and, while the defendant's reputation may have been, and doubtless was, excellent in the matters referred to, yet, if he did not exercise ordinary care in this instance, his reputation for care could have no proper influence upon the deliberations of the jury. Lucia v. Meech, 68 Vt. 175, 34 A. 695.
Error is also assigned because the court excluded evidence as to custom regarding driving stock into this corral. It is unnecessary to determine whether this was properly excluded, because the question next preceding this had been answered, and it was in substance the same, and to have allowed the question to which the objection was sustained would, in effect, have been allowing a repetition of the question just asked and answered.
The court in its charge to the jury stated that there were three degrees of care and three degrees of negligence, and proceeded to define each degree; and error is assigned to such charge upon the ground and for the reason that it directly and inferentially misstated the law applicable, and had a tendency to confuse and mislead the jury as to what ordinary care was, and also that the evidence showed no negligence whatsoever on the part of the defendant, but conclusively disapproved any negligence on his part. We see no merit in this assignment. The fact that the court undertook to clearly define the different...
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