Berenson v. Butcher

Morton J. There yas evidence tending to show that the horse was vicious and was known to the defendants to be so. It could have' been found that the horse had run away at least twice before while the defendants had it, under circumstances similar to those in this case; that it was nervous and liable to jump; and that the stableman had had to hold it for men to get into the team. One of the witnesses testified, without objection, that he was afraid of it, and another, with whom the horse ran away, testified that he told the defendant Brereton, since deceased, that he had run away and he wanted to change it. The same witness also testified that he did not regard the horse as safe. In addition to this the administratrix, the widow of the deceased, testified that in an interview with Brereton after the accident he spoke of the horse as “ a bad horse; a crazy horse ” ; and said that he had told the defendant Butcher, also since deceased, that they “ ought to get rid of the horse.” This evidence warranted a finding that the horse was vicious and that the defendants knew it. It was undisputed that the plaintiff’s intestate was in the employ of the defendants and that the horse was furnished to him by them to be used in their business. There was evidence tending to show that he did not know that the horse was vicious and that the defendants gave him no warning or information as to the character of the horse. Their failure to do so could have been found to constitute negligence on their part (Lynch v. Richardson, 163 Mass. 160), and to have been the proximate cause of the accident. Whether, taking all of the circumstances into account, the deceased was in the exercise of due care, and whether he assumed the risk of jumping from the wagon as he did were plainly questions for the jury. Warren v. Boston & Maine Railroad, 163 Mass. 484. Nisbet v. Wells, 25 Ky. Law Rep. 511. There was nothing to show that Appleton knew that it was dangerous to attempt to feed the horse on the road by taking the bridle off, and, even if he did know it and his negligence contributed to the accident, the defendants would not be relieved thereby. It would be simply a case of joint tortfeasors. Exceptions overruled.