Page v. Hodge

• Decision Date: 12 March 1886
• Citation: 63 N.H. 610,4 A. 805
• Parties: PAGE v. HODGE.
• Court: New Hampshire Supreme Court

4 A. 805

63 N.H. 610

PAGE

v. HODGE.¹

Supreme Court of New Hampshire.

March 12, 1886.

Case. Facts found by a referee:

Harvey Page, the plaintiff's servant, by his direction, was driving his horses, attached to his mowing-machine, from his field to his house. As the team was passing from the field into the highway the defendant, with a scythe upon his shoulder, came along, traveling in the direction the team must take to reach the plaintiff's house. Page, on seeing the defendant, called out to him in such a manner as, considering the unfriendly feeling existing between them, was calculated to bring on a quarrel. After the team was in the highway, and the defendant had threatened to give Page a thrashing, swinging his scythe in a threatening manner, and when both were screaming at each other, Page stopped the horses, laid down the reins, jumped off the machine, and started towards the defendant. They at once closed in a hand-to-hand encounter. The horses, frightened by the noise, ran away, and the machine was damaged to the amount of $30. Page had no reasonable ground to apprehend serious injury to himself from the defendant, if he had remained on his seat, and he was not exercising ordinary care and prudence in leaving his team unattended, but was guilty of negligence in so leaving them, under the circumstances. The tumult was sufficient to frighten horses of ordinary gentleness, unattended in the highway, but was not sufficient to cause horses of ordinary gentleness, or of a character like the plaintiff's horses, to break away from a driver of ordinary skill and strength. The plaintiff was without fault in the selection of a servant, or otherwise, unless the acts of his servant, as above set forth, are in law his acts. Up to the time when Page left his seat, a man of ordinary prudence would not have expected that the horses would take fright from the affray, but after he left his seat, such a man would have expected such a result.

The court ordered judgment for the plaintiff, and the defendant excepted.

Lane & Dole, for plaintiff.

Spalter & Fox and Batchelder & Faulkner, for defendant.

BLODGETT, J. In effect, the referee has found as matter of fact, not only that the plaintiff's servant was guilty of negligence, but that the injury complained of would not have happened had it not been for such negligence. 'These findings preclude a recovery in this case. By intrusting his team to the servant for the purpose of driving it home, the plaintiff put...