Southern Hardware & Supply Co. v. Standard Equipment Co.

ANDERSON, J. Conceding that the violation of the ordinance in question would be negligence per se, the court invaded the province of the jury in so much of the oral charge as assumed and instructed the jury that the wagon of defendant was left unattended and that the defendant’s driver was in effect guilty of negligence [601] The ordinance prevents the “leaving of a horse,” etc., “unattended in the street.” “Leaving,” as used in this ordinance, means to desert, to abandon, to forsake; hence to give up, to relinquish. It was therefore a question for the jury as to whether or not the defendant’s driver violated the ordinance. The witness West testified: “The team Avas attended by the driver, and being loaded by him, and also by the man AArho helps to load; but nobody was holding the mules. The driver Avas right there, and he grabbed the bridle before they had gone 10 feet, and before they struck the mule of the Standard Equipment Company.” It is true the witness stated that no one was actually holding the mules; but this did not, of itself, amount to a Adolation of the ordinance. Nor can it be said that the driver Avas guilty of negligence per se, regardless of the ordinance, simply because he was not holding the bridle or lines at the time the team started. The general rule as to the measure of damages for property destroyed or rendered valueless is the market value of same at the time of the injury or destruction, and the interest. — Southern Ry. v. Gilmer, 143 Ala. 490, 39 South. 265. While this is the general rule, and it affords full compensation in case of the total destruction of the property or its value, yet there is good authority to the effect, especially in case of injury to animals, that, if the animal is not killed or so injured as to indicate an improbable recovery, the owner has not only the right, but it is Ms duty, to resort to all prudent and reasonable means to save the animal, and thereby reduce the damages. This is done 'for the benefit of the defendant, and the owner is entitled, as element of damages, to the reasonable expense, prudently incurred, in his efforts to save the animal. It is insisted that, while this may be the rule in case of a mere injury, it does not [602] obtain where there is a total destructiion or death of the animal, and when the plaintiff gets the value of the animal he gets full compensation. We are inclined to follow the authorities that hold that the plaintiff is entitled to recover the expenses reasonably and prudently incurred by him in his efforts to save the animal, in addition to the value thereof, in case of the subsequent-death of same as the proximate result of the defendant’s wrong. — 13 Cyc. 61; Ellis v. Hilton, 78 Mich. 150, 43 N. W. 1048, 6 L. R. A. 454, 18 Am. St. Rep. 438; Watson v. Lisbon Bridge Co., 14 Me. 201, 31 Am. Dec. 49. It is also argued that it would be dangerous to permit a recovery for expenses in attempting to cure or restore the animal, in addition to the value thereof, in case of death, as the expenses would exceed the value of the animal. The answer to this is: The law only allows reasonable expenses prudently incurred to save the animal. If the expense exceeded the value of the animal, or is for treating one whose condition was such as to make, it apparent that a recovery was hopeless, then it would not be reasonable, and would not be sanctioned. The trial court did not err in not charging out the claim for medicine and treatment of the mule as an element of damages. Charge 4, requested by the defendant, should have been given. It did no more than to instruct a finding for the defendant, if the jury believed from the evidence, the facts therein hypothesized, and Avhich corresponded Avith those relied upon in special plea 2. The trial court committed no reversible error in ruling upon the evidence. The judgment of the Iuav and equity court is reversed, and the cause remanded. Reversed and remanded. Tyson, C. J., and Simpson and Denson, JJ., concur.