Townsend v. Butterfield

SHAW, J.

The defendant appéals from the judgment and from an order denying his motion for a new trial.

The plaintiff sued to recover damages arising from personal injuries alleged to have been caused by the defendant’s negligence. The plaintiff was traveling on horseback eastward, leading and driving an unbroken horse by a sixty-foot lariat fastened around the horse’s neck. He kept the led horse ahead of him, using the lariat to stop him when he shied or attempted t'o run. An automobile belonging to the defendant and driven by his chauffeur, was going westward on the same street. As plaintiff and the automobile approached each other, the unbroken horse became frightened by some act of a man at the side of the street and started running across the street toward the end of another street opening into-it on the opposite side. Plaintiff drew the lariat tight, attempting to stop the horse, but the horse kept on in the direction it had started, thus keeping the lariat tight and obstructing the road. As he was doing this the automobile kept on its course and struck the plaintiff, breaking his right leg and throwing to the ground the horse he was riding. The automobile was brought to a stop some fifteen feet beyond the place of the collision.

The complaint alleges that the defendant “so unskillfully, carelessly and negligently and recklessly ran, propelled and operated said automobile, that said automobile was driven wantonly and maliciously and at a rate of speed in excess of twenty miles per hour, upon, against and over the plaintiff. ’ ’ We do not agree with the appellant in his claim that, under this allegation, the gravamen of the plaintiff’s ease is wantonness and malice due to driving at a speed exceeding twenty miles an hour. The essence of the charge above quoted is that the defendant so unskillfully and negligently ran the automobile that it was driven against the plaintiff. This charge could be established by proof of the collision, and that it was caused by negligence of the defendant, without proof of malice, wantonness, or recklessness and without proving that the automobile was going twenty miles an hour.

[567]

There was sufficient evidence of negligence on the part of the defendant’s chauffeur, for the consequences. of which, under the circumstances, the defendant was legally responsible. It is unnecessary to detail the evidence at length on this subject. There was little, if any, evidence of contributory negligence on the part of the plaintiff. Defendant’s only criticisms of the conduct of the plaintiff are: 1. That when the led horse started to run across the street, the plaintiff should have dropped the rope and let him run away; 2. That after checking or stopping the led horse in the middle of the street, he should have tried to turn or pull him back to the side from whence he started, instead of trying, as he did, to get across the street with him before the automobile should reach the place: It is.obvious that a horse controlled by a rope or lariat in the manner stated might become extremely difficult to manage when frightened, ánd that the jury would not be bound to find the driver or leader negligent, in such emergency, merely because he failed to act in a manner which a deliberate review of the case after the event might show to have been wiser or safer than the course he followed. It was not an inherently negligent act to take an unbroken horse along a street. Highways are made and maintained for the free passage of persons, and of their horses and cattle when properly controlled. There was no evidence that the method of controlling the unbroken horse by means of a rope or lariat fastened to his neck, while taking him along the highway, was an improper or careless method. The use of a rope for that purpose would seem to be a proper precaution and preferable to driving him along with no means of control or check. Under these circumstances it cannot be claimed that the question was not properly left to the jury.