Smith v. Davenport

• Decision Date: 01 January 1891
• Citation: 45 Kan. 423,25 P. 851
• Parties: SUSAN E. SMITH et al. v. A. G. DAVENPORT
• Court: Kansas Supreme Court

25 P. 851

45 Kan. 423

SUSAN E. SMITH et al. v. A. G. DAVENPORT

Supreme Court of Kansas

January 1, 1891

Error from Brown District Court.

THE opinion states the facts. Judgment for the defendant Davenport, at the January term, 1886. The plaintiff Smith and husband bring the case here.

Judgment affirmed.

W. D Webb, for plaintiffs in error.

Jas Falloon, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Brown county by Susan E. Smith, and her husband, Joseph Smith, against A. G. Davenport, for personal injuries sustained by Mrs. Smith in consequence of the acts of Albert Davenport, a minor son of the defendant, eleven years old, in riding over her with a horse. The case was tried before the court and a jury, and at the close of the plaintiffs' evidence the defendant demurred thereto upon the ground that it did not prove any cause of action, and the court sustained the demurrer and rendered judgment for costs in favor of the defendant and against the plaintiffs; and the plaintiffs, as plaintiffs in error, bring the case to this court.

The facts of the case, stated briefly, are substantially as follows: On September 18, 1885, in the afternoon, the defendant directed his son, Albert, to hunt for a colt that had strayed away from their premises. The boy procured a pony mare belonging to Mr. Cochran that was kept on the premises and proceeded to hunt for the colt, but not finding it, he returned that same afternoon about sundown. The mare was then fed by the hired man, and in about one half-hour afterward the boy went on foot to the house of Mr. E. D. Lacroix, about half a mile distant, to inquire concerning Lacroix's health. About the same time, a little brother of Albert's, about eight years old, named Byron, and another little boy named Johnny Nelson, who was about nine years old, rode Mr. Cochran's pony mare to Mr. Lacroix's house. Albert went to the house and made his inquiry. The other two boys with the mare remained at the gate. They then came inside of the inclosure between the house and the gate. They then got off the mare and Albert got on, and rode her upon a "lope" toward the gate, and arriving near the gate the pony changed her course and ran back, and in doing so ran against and over Mrs. Smith and injured her; and then the mare changed her course again and ran toward the gate, and getting...