Schirmer v. Hallman

WOOD, J., (after stating the facts). (1) The court erred in not allowing the appellant to prove by the assessment books the value of the horse. Assessment books are made up by sworn officers and as to personalty are based on the sworn statements of the property owners and they are competent evidence and were entitled to such credit as the jury might see proper to give them as to the value of the horse. Winter v. Bandel, 30 Ark. 362-371; White v. Beal & Fletcher Gro. Co., 65 Ark. 278-284. If these books had shown that the appellee assessed his horse at a much less sum than the value put upon him in his testimony on the trial, the jury was entitled to consider this evidence for what it was worth as tending to contradict the appellee’s testimony, and therefore as affecting his credibility. This error, however, was not shown by the appellant to be prejudicial for the reason that the appellant did not offer to prove by the assessment rolls that the appellee had assessed his horse at a much less value than the value given in his testimony. The court erred in giving Instruction number two, at the request of the .appellee. The appellee testified that when he heard the honk of the machine he did not think it was right on him and couldn’t turn around and look, he thought he would have time to cross the bridge and commenced running his mare on the side of the bridge. When he crossed the bridge she was.clear out of the road and there was just enough of the bridge to the right to keep appellee from slipping off. He thought he had plenty of time to cross and did “for the front wheels had crossed and the hind wheels were on the bridge .and they came up and sent the buggy over into the ditch and the horse wheeled * * * and by that time she had crossed the road and appellee got her checked up and got back into the road.” (2.) We do not discover, in this testimony as abstracted by the appellant nor in any other testimony set forth in his abstract, that there was any indication that the horse had become frightened. The testimony does not disclose any circumstances that were calculated to lead appellant to believe that appellee’s horse would become frightened at the passing ofjife automobile. On the contrary the testimony of the afipellee was to the effect that up to the time the automobile passed his horse had been perfectly gentle and was not afraid of a car at all, until this one struck his buggy. Appellant, therefore, was not required to anticipate that the passing of his automobile would frighten appellee’-s horse, and, in the absence of evidence tending to prove such fact, no duty devolved upon appellant to anticipate that such would be the case, and to exercise ordinary care to slow down and stop his car if necessary to avoid an injury which he had no reason to suspect would occur. .The instruction wás, therefore, abstract, misleading, and prejudicial. St. L. & S. F. Ry. Co. v. Townsend, 69 Ark. 380-5. See, American Standard Jewelry Co. v. Hill, 90 Ark. 78-85, and other cases in Crawford’s Digest, title “Trial.” For the error indicated the judgment is reversed and the cause remanded for a new trial.