Whissler v. Walsh

Opinion by Mb. Justice Williams, The plaintiff was injured in consequence of the running away of the defendant’s horse in September, 1889. He was a wagon356 maker .in the employ of Deisenroth, whose shop was at the corner of Eighth street and Cabot way, in that part of the city of Pittsburg known as the South Side. At the time of the injury he was at work upon the running gears of a wagon in front of the shop and on the edge of the cartway of Eighth street. The evidence would indicate that he was sitting down between the hind wheels at work upon the axletree. While so occupied the horse came running down Eighth street dragging a cart and turned in at one of the doors of the shop. The cart struck the wheels between which the plaintiff was and he was injured. His right to recover depended upon whether the running away of the horse was chargeable to the negligence of the defendant’s driver, and, if so, whether his own negligence contributed to his injury. Both of these questions were submitted to the jury under general instructions of which little complaint is made. At the close of the charge the plaintiff’s counsel stated to the court, “ There is only one thing I would have liked your honor to have said to the jury, that it did not make any difference what the disposition of the horse was.” The learned judge replied, “ Of course if there was negligence on the part of the driver it would be no difference what the disposition of the horse was, if the horse ran off on account of the negligence of the driver.” This was not a responsive answer, and if the verdict had been in favor of the defendant we should probably have the plaintiff before us complaining that his point was not fully answered. The defendant cannot urge that objection, and unless the answer was wrong upon the facts of this case he was not injured by the instruction. Looking at the evidence and the charge of the learned judge it is evident that the case was tried upon the theory that the driver did not exercise ordinary prudence after he discovered that the horse was in trouble and was starting away. The judge said to the jury, upon this subject, “ Then again when the horse started did the driver do what he ought to have done to stop him ? If he saw that the horse had his foot in the belly-band what would a driver do ? Of course it would be his duty as quickly as possible to get at the head of the horse. Did the driver do what he ought to have done ? What an ordinarily prudent and careful driver would have done ? If he was negligent in that respect and in con [357] sequence of that negligence the horse got a start and ran off, then there was hegligence. In the other aspect of the case if the driver did all he could do, all that an ordinarily prudent man would have done under the circumstances, to stop his horse and failed to do it, why then he was not guilty of negligence.” The answer complained of was made with the instruction just quoted in mind, and it must in justice to the learned judge be considered in the same manner. It then becomes a direction to the jury that if, upon this question of negligence on the part of the driver, they find for the plaintiff, the disposition of the horse became wholly unimportant. This was right. If the jury found that the driver failed to do what an ordinarily prudent driver would have done for the relief of his horse and for its control when he saw its hind foot entangled in the harness and the horse trying to move off on three feet, the disposition of the horse was immaterial. It was in trouble. The driver saw it. If he failed to go to its relief and do what common prudence required of him in view of a situation known to him to be an unusual and troublesome one, he was guilty of negligence for which his employer must respond. Cases may arise in which the disposition of a horse, as- known by the driver, should be taken into account in determining whether the measure of care used in a given case is such as a reasonably prudent person would take under the circumstances, but upon the facts of this case and in view of the questions raised on the trial, we think the learned judge committed no error in his answer to the oral request submitted by plaintiff’s counsel. The question of contributory negligence was raised upon the circumstance that the work at which the plaintiff’s employer had set him was outside of' the shop and within the bounds of the cartway. This circumstance was called to the attention of the jury and the question of contributory negligence fairly submitted to them. The assignments of error are overruled and the judgment affirmed.