Pusey v. Webb

• Decision Date: 04 May 1900
• Citation: 47 A. 701,18 Del. 490
• Court: Delaware Superior Court
• Parties: HENRY W. PUSEY v. JAMES M. WEBB

47 A. 701

18 Del. 490

HENRY W. PUSEY v. JAMES M. WEBB

Superior Court of Delaware, Kent County

May 4, 1900

Superior Court, Kent County, April Term, 1900.

ACTION ON THE CASE for damages for the loss of a gray mare owned by the plaintiff. It was claimed by the plaintiff that the defendant negligently permitted the foot of the mare to be cut while shoeing her at his blacksmith shop in the town of Milford, and that from the wound caused thereby blood poison set in, resulting in the death of the mare. The plea was not guilty. The narr consisted of three counts. The first count was for money laid out and expended by the plaintiff in the cure and healing of the mare. The second, for damages for the loss of labor of the mare. The third count was for the value of the mare.

The plaintiff testified that he took the mare to the blacksmith shop of the defendant in the town of Milford on or about the twenty-third of February, 1899, and delivered her into the custody of the defendant for the purpose of having her shod. That either Mr. Webb shod the mare or someone else in his shop, in the absence of the plaintiff who went up town after taking the mare to the shop of the defendant, and that the work had been done when he came back to the shop. That he paid Mr. Webb for the shoeing of the mare. That when he took the animal to the shop there were no cuts or bruises on her feet and there were no signs of lameness. That after he took her back home he noticed some soreness or lameness and upon examination of the hoofs found a hole cut through the wall or bottom of the foot into the quick, and that the wound looked white after he had cleaned the dirt out of it. That about ten or eleven days after the animal was shod he asked Mr. Webb the defendant, about this cut and the latter said "John, my brother, cut it, but he did not think it would amount to anything." The witness further testified that the mare rapidly grew worse and finally died. The veterinarian who attended the horse during its sickness testified that it died from blood poisoning superinduced by the cut in the foot.

The plaintiff further testified that John, a brother of the defendant, who the latter said cut the mare, was employed in a wheelwright shop adjoining the blacksmith shop, and that he did not think he was considered an experienced horse-shoer but that he was put on to shoe horses.

The plaintiff rested, and Mr. White, counsel for defendant, moved for a nonsuit on the ground that there was no proof of negligence on the part of the defendant.

Louth vs. Thompson, 1 Pennewill, 149.

Counsel for plaintiff contended that while in an ordinary case for damages the burden was upon the plaintiff to prove the negligence of the defendant, yet from the nature of the transaction in this case, the plaintiff not being present at the time of the injury to the mare and the mare having been left in his possession as bailee, the burden was upon the defendant to show that the injury did not result from his negligence.

Weber vs. Vernon, 2 Pennewill, 359.

Verdict for defendant.

Arley B. Magee and Alexander M. Daly for plaintiff.

Robert C. White for defendant.

Judges SPRUANCE, GRUBB and BOYCE, sitting.

OPINION

We have considered this question as fully as we could in the short time afforded us, and we decline to grant a nonsuit.

BOYCE, J., charging the jury:

Gentlemen of the jury:--This action was brought by the plaintiff for the recovery of damages from the defendant for the death of a mare belonging to the plaintiff, and for money laid out and expended by him for medicine and medical services procured for her.

The plaintiff charges that on, or about, the twenty-third day of February, 1899, he delivered his mare into the custody of the defendant, at the blacksmith shop of the latter, in the town of Milford, for the purpose of having her shod; that he left the shop for a time; that upon returning, finding that the mare had been shod, he paid the defendant therefor, and took her away; that within a few days thereafter he discovered that the mare was lame, and, upon an examination, he found that the inner part of her left forefoot, near the hoof, had been cut into the quick. The plaintiff avers in his declaration that the defendant did undertake to and did shoe his mare, and that by his negligence and carelessness in so...