Siemers v. Eisen

Department No. 2, Morrison, C. J.: Plaintiff brought this action to recover damages for injuries caused by a runaway horse belonging to the defendant. The case was tried before a jury, and a verdict was rendered in favor of the plaintiff for $1,400 damages. Defendant moved the Court for a new trial, which was denied, and this appeal is taken upon questions of law and fact.

The evidence relating to the injury is very brief and remarkably free from conflict. The witness Mysell states that the defendant’s wagon (a small buggy) stood at the corner of Ninth and Minna Streets, where there is a grocery store. The driver of the buggy was coming out of the store, where he had been soliciting business, and when he came out he was about twenty-five feet from where the horse stood. As he came out of the store “ he beckoned to the horse, making a chirping sound with his lips,” and then walked across Ninth Street to go to another grocery store on the opposite side of the street. lie did not go in front of the horse, but stepped into the middle of the sidewalk and crossed over the flags, the horse following him gently on the street; “ and when the horse got into the curve there was a little rut there; it was put there for a track, and the light buggy made a jump, whereupon the horse looked back and immediately started to run.” The driver was standing by the corner and called the horse to stop, but he did not stop. At the time the horse started to run away, the driver was standing from ten to fifteen feet distant. The evidence of the driver differs in some slight particulars, but is substantially 'the same. The plaintiff was run over when in the act of crossing Minna Street, and was severely injured. It further appears from the evidence that the horse was a gentle animal, and had been trained to fol-low the driver.

On behalf of appellant- it is claimed in the first place that the Court below erred in refusing- to give certain instructions asked, by defendant. These instructions relate to the questions of negligence, contributory negligence, and damages. There is no doubt that several of these instructions were correct, and should [420]have been given; but an examination of the charge of the Court to the jury will show that all the principles of law embodied in the instruction refused were fully covered by the charge. This was sufficient, under numerous decisions of this Court. Indeed the charge of the Court on the question of negligence on the part of the defendant or his employe was more favorable than the facts of the case demanded; the Court i left the question of defendant’s negligence to the jury, instead of charging them that the proof fully established it. There is no doubt that the horse was left on the public street unfastened in violation of the following ordinance, which was put in evidence in the case: