Nisbet v. Wells

• Decision Date: 29 September 1903
• Citation: 76 S.W. 120
• Parties: NISBET v. WELLS.
• Court: Kentucky Court of Appeals

76 S.W. 120

NISBET v. WELLS.

Court of Appeals of Kentucky.

September 29, 1903

Appeal from Circuit Court, Hopkins County.

"Not to be officially reported."

Action by W. L. Wells against M. A. Nisbet. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W. S Pryor and Cox & Gordon, for appellant.

C.J Waddill, for appellee.

O'REAR J.

Appellant a liveryman, hired to appellee a horse and buggy to be driven some miles into the country. Appellee informed appellant's servant in charge of the stable of the purpose for which he wanted the team, and that he was to be accompanied by a young lady. The horse furnished was a high-spirited, mettlesome animal, that had previously run away and damaged the vehicle. Appellee was not informed of that fact. On this occasion the horse, without apparent cause, run away, and injured appellee, for which he sued to recover his damage.

The court correctly instructed the jury that it was the duty of appellant to furnish appellee a reasonably safe horse for the drive, and if the horse furnished was not reasonably safe for the purpose, and the fact was known to appellant at the time of the hiring, or could have been known to him at such time by ordinary care, and if the injury resulted from the fact that the horse was not reasonably safe for the purpose for which he was hired, then the jury should find for the plaintiff, appellee, unless his injuries were the result of his own fault or neglect in the management of the horse. The only criticism of this instruction seems to be that the court limited the matter of appellee's contributory negligence to his management of the horse. As a matter of fact, we do not find where there was any evidence to submit any other theory of contributory negligence, for after appellee was put in danger by the runaway, he had the right to jump from the vehicle as he did, although if he had not jumped he need not have been injured. Being put in a perilous position, and required to act immediately, he had the right to act as he did. Nor was appellee required, after the horse showed the first symptoms that it was dangerous and would run away, to abandon it, and walk back to the town, some miles distant. This circumstance merely brought to his knowledge the dangerous disposition of the horse requiring extra care and precaution on his part in managing it from that time on.

It is further objected that incompetent evidence was...