Lobenstein v. McGraw

[648] The opinion of the court was delivered by Brewer, J.: The first question presented by counsel for plaintiff in errot in their brief is as to the sufficiency of the following bill of particulars: “Leavenworth, Kansas. W. C. Lobenstein, To Patrick MeGraw, Dr.: To damages sustained by allowing a large pile of buffalo hides exposed on the said Lobenstein’s lot on the NE corner of Choctaw and Third streets, in Leavenworth city, on the 9th June 1872, thereby causing the said McGraw’s horse to run off, and thereby damaging said horse, and the .said McGraw’s buggy, to the amount of $100.00.”. It is not to be expected that a bill of particulars will be drawn with the same fullness and precision as a petition. Much of the business in justices’ courts is done by the parties themselves, and not through the instrumentality of attorneys. It is well that this is so, for thus a convenient, expeditious and cheap method of settling minor disputes, and collecting small accounts, is furnished to all. The justices themselves are selected not on account of their legal knowledge, but because of their good common sense. The chief value of these tribunals, to the poorer classes at least, would be lost if the rules of pleading in them were made so technical and difficult that the services of an attorney were necessary in every case. In .the case before us there is no possibility that the defendant was misled by the bill of particulars, or that he failed to understand fully the nature of the claim made against him. The court therefore did not err in holding it to be sufficient. A more material question is as to the liability of the plaintiff in error for the injury. The facts are these: Lobenstein had been for a length of time in possession of the vacant lots on the corner of Third and Choctaw streets. These he was using for the purpose of curing, drying, packing and baling buffalo hides. They were not inclosed by any fence. Neither was anything done to protect the hides from exposure to the sight of passing animals. Several horses had been [649] frightened by these hides, and Lobenstein had been notified of the danger. On the day in question McGraw’s horse, while being driven at an ordinary gait down Third street, took.fright at the hides and ran away, causing the damage complained of. The uniform testimony was, that as a general thing horses are frightened at the sight of hides, some witnesses saying that green hides would, through smell and sight, scare horses more than almost anything else. The court after speaking of the right of a man to use his property as he pleases, and to pursue any lawful business in a lawful manner, summed up the case to the jury in these words: “Now, from what I have said you will understand that the defendant cannot be held responsible to the plaintiff in this action unless it affirmatively appear by the weight or preponderance of the testimony, first, that there is a peculiar tendency in the business he was engaged in, or rather for which he was using the lots in question, that induces fright in horses traveling the public streets in the vicinity, and unless it appears that he was aware of the fact-; and also unless it appears that he failed to inclose his lot, or to shield or hide in a reasonable manner the robes or hides that, he had exposed upon the lot from the view of animals in the street.” Was there error in the instruction, or the verdict? The business Lobenstein was engaged in was a lawful business, and he had a right to pursue it. But it does not follow therefrom that he had a right to pursue it in any manner deemed most convenient. Sió utere tuo, ut alimvm non laidas, expresses his rights, and measures his obligations. The amount of care which one engaged in any business must exercise, to prevent injury therefrom to • others, varies with the character of - the business, and the place in which it is carried on. All that can be said is, that he must exercise reasonable care. A railroad company must put forth more watchfulness and effort to prevent injury from its trains, than a teamster in driving his wagons. That which would be reasonable care in running trains away from any settlement, might be gross negligence when running through the crowded [650] streets of a city. Reasonable care, therefore, being not an absolute, but a relative term, no statement can be made of the particular act or acts one must do to avoid any responsibility for injuries caused by the manner of conducting one’s business. Lobenstein’s right to use this lot is not more sacred than the right of the public to use the streets. No man has a right to block up the streets so as to prevent or endanger Lobenstein’s access to or use of his lots. Neither has he any right to so cover his lots with robes and hides as to endanger the use of the street by the public, when by the exercise of ordinary and reasonable care such danger can be averted. In Shearman & Redfield on Neg., p. 641, § 590, the rule is thus laid down in reference to machinery, and it is equally applicable here: “It is the duty of every one owning or using machinery which is or may become dangerous, to take such precautions as reasonable care would suggest to prevent it from injuring persons who are rightfully in the vicinity. If for this purpose it is necessary to surround any part of such machinery with a fence, that must be done; and where machinery cannot be in that or any similar way prevented from doing any injury it must while in motion be watched by some person capable of warning others of their danger.” We see no reason to question the correctness of the instruction, nor do we feel warranted in disturbing the verdict and judgment.' The judgment of the district court will be affirmed. All the Justices concurring.