Way v. Powers

[138] The opinion of the court was delivered by Rotcb, Ch. J. This action was brought to recover compensation for injuries to the plaintiff’s person and property occasioned by the alleged negligence of the defendants. It is found, that the defendant, Jonathan Powers, was the owner of two horses, and the defendant, Abner, who was his son and hired man, di-ove them as he had occasion for private driving, without special permission of his father. On the 19th day of May, 1879, Abner, who was expecting a friend to make him a visit at his father’s home, took one of said horses and an open wagon, without the permission of his father, and drove them to the depot at West Burke to meet his friend. His father did not know he had gone until he had been absent some time; but expected and was willing he should take the team to bring his friend from the depot, when he should need it for that purpose. Abner arrived at the depot more than an hour before the arrival of the train, and hitched the horse in as secure a place as there was around the depot, and at the usual place for the defendants to hitch. The horse was restive and pulling upon his halter, which was noticed once at least by Abner. He finally broke loose and ran into the team of the plaintiff, thereby causing the injuries to him, which are sought to be recovered for. The horse broke away in consequence of a defect in the rope with which he was tied. The defect consisted in the knot in the end of the rope being too near the end of it, so that it worked out and was untied by the continual pulling of the horse. In all other respects it was suitable and sufficient. And it is found that Abner did not exercise the prudence of an average prudent man in using the rope with said defectively tied knot in the end; or, in other words, in not seeing that the knot was suitably and properly tied. It is clear that the defendant Abner is liable; for it is found that the damage to the plaintiff resulted from his negligence in using the defective rope in tying the horse. [139] Abner was not at the time in the employment of his master, nor acting upon his business. He took the horse, as we have seen, without the permission or knowledge of Jonathan Powers. And no license to take him could be inferred from the fact that he had used him upon his own business upon previous occasions without leave. Abner was not entrusted by his master with the horse and carriage; and so his master is not brought within the rule of liability that has been held to apply in the cases to which we have been referred by the counsel for the plaintiff. If Jonathan Powers should be held liable, upon the facts. found, it would, in legal effect, be holding him responsible for the damage resulting from the use of a defective article owned by him, when the use was without his permission or knowledge. The judgment is affirmed.