Weaver v. National Biscuit Co., 7837.

• Decision Date: 03 February 1942
• Docket Number: No. 7837.,7837.
• Citation: 125 F.2d 463
• Parties: WEAVER v. NATIONAL BISCUIT CO.
• Court: U.S. Court of Appeals — Seventh Circuit

125 F.2d 463 (1942)

WEAVER v. NATIONAL BISCUIT CO.

No. 7837.

Circuit Court of Appeals, Seventh Circuit.

February 3, 1942.

Ralph B. Gregg, Sidney S. Miller, Harold H. Bredell, and Miller, Miller & Bredell, all of Indianapolis, Ind., for appellant.

Fae W. Patrick and Seth S. Ward, both of Indianapolis, Ind., and Pell & Pell, Wilbur F. Pell, and Wilbur F. Pell, Jr., all of Shelbyville, Ind., for appellee.

Before MAJOR and MINTON, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

But one question confronts us, — whether the District Court erred in overruling the motion for directed verdict made by defendant against whom judgment for $15,000 was rendered in a personal injury accident.

The first paragraph of the claim was not prosecuted. The second, based upon violation of an ordinance of the City of Indianapolis forbidding livestock at large, in view of our conclusion, it is not necessary to discuss. Paragraph 3 charged substantially that on the 16th day of August, 1916, two horses belonging to defendant were by their caretaker negligently permitted to escape from the closure about the barn where they were kept and to run down the sidewalk of Leota Street in a thickly populated section of Indianapolis and tread upon, kick and injure Ernest Weaver, a child of the age of four years, then playing upon the sidewalk, so that, as a result of such injuries, he has ever since been non compos mentis. The suit was prosecuted by his next friend.

The evidence in support of this paragraph is substantially as follows: Plaintiff, a child of four years, was playing on the sidewalk of Leota Street in a closely populated section of the city. Two horses, young, of good disposition but high spirited, belonging to defendant, came running down the sidewalk at full speed, without harness, bridle or halter, kicking up their heels as they ran. The child was standing on the walk and, as one of the horses jumped over him, he was hit by the animal's knee or foot and knocked down upon the sidewalk.

The horses were kept at a barn not far distant from the place of the accident and there taken care of by defendant's employee, who said at the time that "he was watering the horses and let them get out"; that they "ran away."

We think the applicable rule of law is that the owner of an animal who keeps it at a place adjoining the streets of a populous city owes a duty to the persons on the street to keep his animal under control and to take reasonable care to prevent it from doing damage to others and that, if he is remiss in performance of this duty and an accident occurs, he is liable for the resulting injuries. It is not necessary that an animal be vicious to make the owner responsible for injury done by it through the latter's negligence. If the most docile of horses is permitted to escape in a populated section of a city and run playfully down the sidewalk, where it does not belong and where children are expected to be found, the owner will be responsible. It is the negligent loosening of the animal in a place where injury may naturally occur, without any retention of restraint or control, that produces liability for resulting injuries.

Such consequences may well be anticipated because of the natural propensities of the animal. Thus in Dyer v. Noll, 105 Ind.App. 241, 14 N.E.2d 760, 761 the court says: "If the natural propensities of the animal are such that damages to person or property may be reasonably expected to follow its freedom from the control of its owner, then such owner is responsible for resulting damages which ensue because the animal has...