Wilhelm v. Donegan

HARRISON, C.

Action for injuries to personal property. In his complaint the plaintiff alleges that on a certain day the defendant “seized plaintiff’s buggy while plaintiff’s team of horses was attached thereto, and while plaintiff was seated therein, and overturned and upset said buggy, throwing plaintiff violently to the ground and causing” injury to his horses, buggy, and harness. To this complaint, which was unverified, the defendant made a general denial. The cause was tried before a jury, and a verdict rendered in favor of the defendant. From the judgment entered thereon and from an order denying a new trial the plaintiff has appealed.

The fact that the plaintiff’s buggy was upset on that day, and that it, as well as the horses and harness, was seriously injured, does not seem to have been controverted at the trial,— the issue to which the evidence was chiefly directed being whether the defendant was the cause of the injury. On that day the plaintiff, with a companion, drove in the buggy to where the defendant was at work, for the purpose of collecting a bill. Soon after getting out of the buggy the plaintiff had a personal altercation with the defendant, during which harsh words were spoken and violent blows given to each other, and the plaintiff fell to the ground. Upon getting up he again got into his buggy and started to drive away. After going a short distance the buggy tipped to one side and the plaintiff and his companion were thrown to the ground; the buggy thereupon righted, and the team ran away, and in their running brought about the injury to the property.

Upon the question whether the buggy was upset by the act of the defendant or otherwise the testimony was directly contradictory. The plaintiff testified that after he had got into the buggy the defendant grabbed hold of the seat, and pulled and gave a yank on it that drew the buggy over, threw them out, and caused the horses to run away; that the defendant turned the buggy over, and continued to hang on to the seat until it upset. The defendant testified that while he may have put his hand upon the seat he did not pull on it a pound; that the buggy was eighty or a hundred feet from him when it upset. Other witnesses testified that the defend

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ant did not pull upon the buggy so as to pull it over, or have hold of it when it was upset, and that he was at least one hundred feet from it at that time. There was other testimony before the jury tending to show that after the plaintiff got into the buggy the horses were immediately started off by his companion, and, being spirited, went rapidly, and instead of going directly along the street veered into some bushes, and while going away from these curved around so sharply and with such speed that the buggy was thereby tipped to one side and the occupants thrown out, and the horses then ran away, and brought about the injury to themselves and the buggy. As the jury rendered its verdict in favor of the defendant, it must be assumed in support thereof that they found against the testimony of the plaintiff, and that the defendant did not upset or overturn the buggy. As the plaintiff therefore failed to establish this allegation of his complaint, judgment was properly rendered against him.