Pease v. Cochran
| Decision Date | 24 June 1919 |
| Docket Number | 4541. [*] |
| Citation | 173 N.W. 158,42 S.D. 130 |
| Parties | PEASE v. COCHRAN. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brookings County; W. N. Skinner, Judge.
Action by Eva Pease against Robert Cochran. Judgment for plaintiff and defendant appeals. Reversed.
Cheever & Cheever, C. O. Trygstad, and Olaf Eidem, all of Brookings for appellant.
Hall Alexander & Purdy, of Brookings, for respondent.
While the plaintiff was riding in a buggy along a highway, in Brookings county, her horse ran away, upsetting the buggy and throwing the plaintiff to the ground, thereby causing her serious, and probably permanent, injury. Claiming the runaway was caused by the negligent manner in which defendant was operating a motorcar on said highway, plaintiff brought this action to recover damages caused by said injury. She recovered judgment and defendant appeals.
The negligence attributed to defendant is charged in the plaintiff's complaint in the following manner:
"That plaintiff's said injuries and damage were directly and proximately caused by the unlawful, careless, and negligent act of said defendant in so driving his said automobile, loaded in the manner aforesaid, at an excessive speed on the highway, and in failing to stop when the horse driven by plaintiff showed signs of fright and of being unmanageable."
This allegation charges three distinct acts of negligence: First, the improper and negligent manner of loading the automobile; second, the excessive rate of speed at which defendant was driving at the time of the injury; and, third, the failure of defendant to stop said car when it became apparent to him that plaintiff's horse was becoming frightened. Either of these acts, if shown to have been the proximate cause of the injury, would entitle plaintiff to recover.
To prove the first act of negligence, it was shown that, at the time of the accident, defendant was carrying in his car an article of furniture, commonly known as a chiffonier. Said chiffonier was 4 feet high, 37 inches wide, and 18 inches deep. It was in the rear of the car, resting upon the floor of the car and against the cushion of the rear seat. It was brown, and had a polished surface. Plaintiff saw this piece of furniture in defendant's car at the time of the accident, and testified that it extended 3 or 4 feet above the back of the seat, and that it appeared to be white; but other witnesses who saw it testified that it did not extend more than about 18 inches above the back of the seat. From the height of the chiffonier and the manner in which it was riding in the car, this latter estimate must be approximately correct. There was some conflict in the testimony as to what other articles were in the car. Defendant testified that the only other article in the car was a ten-pound jar of butter that was beside him on the front seat. One or two witnesses who saw the car after the accident testified that there was a sack or two or grain on the front seat, and that there was a ladder some 12 feet in length, tied or strapped to the outside of the car. This may be a correct description of the appearance of the car, and it may be a fact that there was something about the appearance of the articles in said car that frightened plaintiff's horse; but these facts alone do not constitute actionable negligence on the part of the defendant.
In order to constitute actionable negligence on this branch of the case, there must have been something about the appearance of the car or the manner in which it was loaded that would suggest to an ordinarily prudent man that it would terrify or frighten an ordinary horse; i. e., a horse that had become accustomed to automobiles on the road. There are horses that would take fright at any automobile, regardless of whether it was loaded at all; but people are not required to refrain from using automobiles on the highway to avoid frightening such horses, and a person taking such horse on the highway would do so at his own peril. On the other hand, there are horses that would not take fright at an automobile, no matter how it might be loaded or what its appearance might be. But this fact would not justify a person in going upon a highway with an automobile so loaded, or having such an appearance, that it would be calculated to frighten or terrify an ordinary horse.
In this case, we do not believe that defendant's automobile was loaded in such a manner as to suggest to a reasonably prudent person that it would frighten or terrify an ordinary horse. The article of furniture that defendant was hauling was one that he had a right to have in his possession and to move from one place to another, if he so desired, and to move it in an automobile if...
To continue reading
Request your trial