Cooper v. Layson Bros.

Pottle, J. The plaintiff hired a horse and a buggy from the defendants. The buggy and the harness were free from defects. The driver who went with the plaintiff was careful and experienced. Shortly after the journey began, and without any apparent cause, the horse began to kick and run, and as a result the plaintiff either fell or was thrown out of the buggy and was injured. On proof of this the plaintiff rested his case. The defendant contends that even if the horse was vicious and dangerous, proof of the scienter was necessary to enable the plaintiff to recover. Counsel for the plaintiff insist that the maxim res ipsa loquitur should apply, and that negligence can be inferred from the fact that the horse kicked and ran. Neither of these contentions is absolutely correct. As to persons other than one to whom a dangerous animal is hired, proof of the scienter is essential. Where a bailee for hire of a dangerous animal seeks to recover from the bailor for injuries resulting from the vicious nature of the animal, proof of the scienter is not necessary. The plaintiff makes out his case by showing the injury and that the defendant was lacking in ordinary care, in [136] furnishing an animal unsuited for the purposes for which it was hired. Negligence is not presumed, and must affirmatively appear from the plaintiff’s proof. The mere fact that on a particular occasion a horse being driven to a buggy began to kick and run does not, without more, prove negligence on the part .of the owner in furnishing the horse. Even if this would be sufficient to show that the animal was one having dangerous and vicious propensities, the proof should go further and show that the owner knew of the character of the animal, or that by the exercise of ordinary care he could have known thereof. This might be shown by proof that the bailor had owned the animal for some time, and that on other occasions he had exhibited dangerous propensities. From this the jury might infer that the owner, by the exercise of ordinary care, could have known of the character of the animal, but where the animal appears to be gentle and suitable for the purposes for which it is hired, and the only proof to sustain the plaintiff’s case is that on the particular occasion upon which the injuries were sustained the animal became frightened and attempted to run away, this alone is not sufficient to show that the defendant was guilty of such negligence as to render him liable to the plaintiff for the injuries which he sustained. The court did not err in awarding a nonsuit. Judgment affirmed.