Denison v. Lincoln

By the Court. The jury were instructed that, in order to recover, the plaintiff must prove that the act of the' dog was the sole and proximate cause of the shying of the horse. This instruction was sufficiently favorable to the defendant, and precluded the return of a verdict for the plaintiff if any negligence on her part, or any fault of the horse, contributed to the accident in which she was hurt. The further instruction, that, “ if the horse had a habit of shying amounting to a vice, and on this occasion shied by reason of such vicious habit, or if such vicious habit contributed to the accident, the plaintiff could not recover, 238 but if the shying was not by reason of any vicious habit of the horse it would not prevent the plaintiff from recovering if it contributed to the accident,” is to be construed in connection with the previous instruction, and, so construed, could not have been misunderstood. The meaning evidently was, that, if the act of the dog was the sole and proximate cause of the shying, and the shying was not the result of any vicious habit of the horse, the fact that the shying contributed to the injury would not prevent a recovery by the plaintiff. The distinction in the mind of the judge, which he was endeavoring to point out to the jury, was that between a shying caused by an act of the dog, such as would naturally cause a horse to shy as the plaintiff’s horse shied, and a shying which resulted from a fault of the horse. No endeavor was made to distinguish between an act of the horse resulting from a vicious habit, and a faulty act produced by some unknown cause; and the case did not call for that distinction. The instruction given had therefore no tendency to mislead the jury. In the opinion of a majority of the court, it cannot be said that the ruling which was refused ought to have been given. There was conflicting evidence as to what the dog did, and it was a matter for the jury to determine whether his acts amounted to an attack or a demonstration of attack upon the horse. The whole evidence is not reported, and we cannot say that there may not have existed in the acts of the dog certain characteristics which made those acts amount to a demonstration of attack which would naturally cause a- horse to shy, though the dog did not leave his master’s premises, nor go within fifteen feet of the horse, nor bark or make any noise. Exceptions overruled.