Bethune v. . Bridges

Stagy, O. J. The question for decision is whether the evidence suffices to carry the case to the jury in the face of a demurrer. The trial Court answered in the affirmative. We are inclined to a different view. It is conceded there was no negligence on the part of the defendant in failing to keep the horses in restraint, i.e., the horses escaped from the barn or lot through no foreseeable neglect on the part of the defendant. Gardner v. Blade, 217 N. C., 573, 9 S. E. (2d), 10. The case then comes to whether the defendant acted as a reasonably prudent person in abandoning the night search for the horses after he and members of his family and others had hunted them for half an hour in the rain. The law requires only reasonable foresight and prevision. This, the defendant seems to have exercised in the circumstances disclosed by the record. The horses had never before broken out of their stable or lot, and the defendant had no reason to believe they might attack travelers or vehicles on the highway, or that injury was likely to result to any one from their being at large for the night. 2 Am. Jur., 737.,- Indeed, the defendant still thinks the plaintiff was at fault in running into one of the horses. The case was tried on the theory that the defendant was in duty bound to search for the horses which had gone astray, and to continue the search “until .they were found or until it became light,” or else answer in damages for any injury they might cause upon the public highway to travelers or others lawfully thereon. The defendant’s liability is to be measured by the law of negligence rather than that of suretyship. Lloyd v. Bowen, 170 N. C., 216, 86 S. E., 797. *625 The defendant’s demurrer to the evidence was well interposed. It will be allowed here. G. S., 1-183. Reversed.