Myler v. Bentley

• Decision Date: 05 March 1924
• Docket Number: No. 36.,36.
• Citation: 197 N.W. 521,226 Mich. 384
• Parties: MYLER v. BENTLEY.
• Court: Michigan Supreme Court

226 Mich. 384

197 N.W. 521

MYLER

v.BENTLEY.

No. 36.

Supreme Court of Michigan.

March 5, 1924.

Error to Circuit Court, Calhoun County; Walter H. North, Judge.

Action by Hugh P. Myler against Ben K. Bentley. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and% wiest, jj./J. M. Hatch, of Marshall, and Jos. L. Hooper, of Battle Creek, for appellant.

James W. Mackey, of Marshall, for appellee.

CLARK, C. J.

Plaintiff's automobile, driven by him along a paved country highway, in the nighttime, collided with a horse of defendant, claimed to have been permitted negligently to run at large in the highway, contrary to section 7285, 2 Comp. Laws 1915. Plaintiff was injured. The automobile was damaged. Averring such claimed negligence to be the proximate cause of the injury and damage, plaintiff brought suit and had verdict and judgment. Defendant brings error.

[1] Defendant's farm adjoined the highway. He owned seven horses. Returning to his home about 9 o'clock that night, he found two of them out of the inclosure. He drove them back, and retired, making no effort to ascertain whether other of his horses were also out. The collision followed soon thereafter. Defendant's negligence was a jury question, properly submitted as follows:

‘Did Mr. Bentley use reasonable care to prevent the horse from running at large on the highway? In considerating that question you have right to consider all the facts shown here including the fact that when Mr. Bentley came home that evening he found two other horses that had gotten outside the pasture lot or inclosure in which they had been placed and put them in, and in view of that fact did he use reasonable care to ascertain whether the others were there including the one that collided with this machine? That is a question of fact I leave to you for consideration, saying that Mr. Bentley was bound to use in that regard just such care and caution as a reasonably careful and prudent man would use to see that his stock, for instance, his horses, if it was one of Mr. Bentley's horses, was not upon the highway in violation of the law.’

Plaintiff testified:

‘Well, as I said I saw the horse coming toward me; it wasn't-couldn't have been-very much of a distance because right away it happened right away into the road. At first it wasn't right on the road, but it crossed right into the road, and after it got most to it I turned the wheel right around as sharp as I could to the right, and the horse merely hit the front fender and caught the windshield...