Johnstone v. Tuttle

Rugg, J. The plaintiff was a lamplighter and used in his work of lighting and filling street lamps a democrat wagon drawn by one horse, and a short ladder, one end of which rested in the wagon and the other on the support of the lamp he was to fill. In December, 1903, while on this ladder performing his work, his horse started suddenly and he was thrown to the ground and injured. For these injuries he sued the defendant in tort, and introduced evidence tending to show that the horse was caused to start by the acts of the defendant’s dog in barking and running under the horse. The defendant produced evidence tending to prove an alibi for the dog and its good character as to barking. He then offered to show that, before the accident, the plaintiff’s horse had formed a habit of starting of its own accord in the absence of a dog or other disturbing cause. This evidence was excluded, the judge saying that it was “ immaterial and incompetent.” The exception to this ruling must be sustained. One of the issues between the parties was the conduct of the horse on the occasion in question. It is common experience that dumb animals, when not under the immediate control of caretakers, act from instinct or habit, and are more likely under particular circumstances to follow their usual bent than to start on a new course of conduct. A reasonably accurate and reliable prophecy as to what a horse will do under given conditions may be premised upon a knowledge of what he ordinarily has done before under similar conditions. In cases of this sort, evidence as to the habits of the animal in those particulars in dispute usually has been received. Lynch v. Moore, 154 Mass. 335. Bemis v. Temple, 162 Mass. 342. Broderick v. Higginson, 169 Mass. 482. Palmer v. Coyle, 187 Mass. 136. Such evidence, in some aspects of the case, might be of signal assistance in the defence. It might afford a complete explanation of the cause of the injuries received, and its exclusion might leave the jury in the dark on that subject, save as they might believe the statement of interested witnesses. See McGinn v. Platt, 177 Mass. 125. The evidence was not rejected because it was too remote [114] in time, but on the ground that it was incompetent and immaterial. Maggi v. Cutts, 123 Mass. 535. This error was not cured subsequently. When another witness called by the defendant was upon the stand, the judge said that it might be shown, by any acts that the witness had seen, that the horse was unsafe to use upon the road, but that he could not testify “ that he has seen him do things that he did not like, but that he had seen enough of him to know that he was not a proper horse to be using on the streets by reason of viciousness or by reason of anything else.” This cannot fairly be interpreted to mean a withdrawal of the ruling deliberately made and emphatically expressed during the examination of the previous witness that the habits of the horse as to starting of his own accord could not be shown. It permitted evidence of viciousness or anything showing unsafeness in driving, but in view of what had gone before, did not go to the extent of permitting evidence as to the special habit of the horse while standing at a lamp post. The other exceptions taken by the defendant have not been argued and are treated as waived. Exceptions sustained.