Baker v. Ratkiewicz

Wait, J. The plaintiff, a minor, while walking through his father’s cornfield, startled a horse which was wrongfully in the field. The horse had been hobbled by putting a rope around its forelegs so that it could not take a step longer than six inches. It reared, swung around, struck the plaintiff with its fore hooves, and injured him. There was evidence that it was used by both defendants in the business of their farm; that many times, on complaint that it was trespassing, one or the other had driven it out of the father’s premises; that each of them had referred to it, or had raised no question when it was referred to, as “his” or “her” horse; that one or the other had frequently been seen to turn it out hobbled to pasture; that Mrs. Ratkiewicz had promised once to see about damage which it had done and her husband had attended to the repairs. There was thus evidence for a jury of joint ownership or a joint keeping by the defendants, although they testified that the horse belonged to a minor son who cared for, looked after it, and used it in his occupation. Maillet v. Mininno, 266 Mass. 86. It was for the jury, not for the judge, to draw the inferences from the testimony, unless, as matter of law, only inferences favorable to the defendants and decisive in their favor were permissible. There was abundant evidence that the horse was permitted to wander about in its hobbled state. An expert veterinary surgeon testified that, if startled, a hobbled horse would “flare up” and might do many things owing to its inability to run; that, not having freedom of movement, and, thus, unable to control itself, it might rear awkwardly, fall over, and be a source of danger to anyone. This would support a finding of negligence in permitting any horse so shackled to get upon the premises of others. Viciousness of the horse is not involved. Any well-behaved animal might reasonably [180] be expected to act, if hobbled, as this one did. Consequently whoever owns or controls it will be held in law to act with reference to the reasonable probability of harm to others. “The owner of an animal, or the person who in his place . . . has the . . . custody and control of it, is liable for injuries which he negligently suffers it to commit.” Lyons v. Merrick, 105 Mass. 71, 76. Although the word “trespass” is used in the third and fourth counts of the declaration, the action is not based on trespass. It rests in negligence. Rulings dependent on technicalities of the action of trespass have no place here. We see no error in the refusal to direct a verdict for the defendants, or either of them, on any count. There was evidence to be weighed by a jury. There is nothing in the other exceptions. The judge was not bound to instruct in regard to detached portions of the evidence. Smith v. Import Drug Co. 253 Mass. 368. We have examined the charge as reported in the bill of exceptions, and find that the issues of the case were presented with sufficient fullness and the material rules of law were adequately indicated. The jury could not fairly have understood that the defendants could be found liable merely because the horse was trespassing. Detailed discussion is unnecessary. Exceptions overruled.