E. P. Johnson & Co. v. Small

• Decision Date: 14 September 1844
• Citation: 44 Ky. 25
• Court: Kentucky Court of Appeals
• Parties: E. P. Johnson & Co, <I>vs</I> Small.

44 Ky. 25

E. P. Johnson & Co, vs Small.

Court of Appeals of Kentucky.

September 14, 1844.

APPEAL FROM THE MASON CIRCUIT.

CHIEF JUSTICE EWING delivered the opinion of the Court.

THIS is an action on the case, brought by Small against E. P. Johnson & Co., as owners of a stage, for the negligence or wilful misfeasance of their driver, whereby in rapidly descending the public Turnpike Road near Maysville, the stage horses ran upon or came in conflict with the team of the plaintiff's wagon, which was ascending the hill, affrighting them, and causing them to turn suddenly down hill and run away with his wagon, breaking the same to pieces and crippling one horse, and greatly injuring the others. The plaintiff obtained a verdict for $130, for which judgment was rendered against them, and their motion for a new trial being overruled, they have brought the case to this court.

The instructions of the Circuit Court to the jury, were as favorable to the defendants, if not more so, than they should have been, and they have no ground of complaint on that score.

If the defendant's agent, the stage driver, was guilty of negligence, or a want of due care, whereby the injury accrued to the plaintiff, he had an unquestionable right to recover against the defendants, unless the illegal or wrongful act of the plaintiff, caused the conflict and injury.

The evidence is such, as to warrant the jury in coming to the conclusion, that he was guilty of negligence, or the want of due care, if not of wilfully and intentionally drawing his horses to the right, so as to throw them into conflict with the plaintiff's horses, as the means of checking their speed.

It appears that one of the blocks or rubbers, which was necessary by the assistance of a lever, to one end of which it was fastened, to check the speed of the stage coach, had become loose, and the driver when he received the team nine miles back, had procured nails and attempted to fasten it, and says he thought it was fast. This block or rubber droped off before or after he started down the hill, and in pressing upon the end of the lever without the block, the end under his foot was pressed down on the off horse, who plunged, and continued to plunge as often as it was pressed upon, as the means of impeading the speed of the stage, which caused the other horses to take fright and press forward until they ceased to be under the control of the driver. It is perfectly evident that the loss of the rubber, which was known nine miles back, and the attempt to descend a very dangerous hill without it, was the cause of the accident and injury which occur red. The jury might well have infered that the stage driver was guilty of negligence, or a want of due care, in fastening securely the block to the lever, when he received the stage. It is very certain...