Hambleton v. McGee

Bartol, J., delivered the opinion of this Court: At the trial of this case, in the Court below, after the testimony of the plaintiff was concluded, the Court was asked to instruct the jury “that there was no evidence to charge the defendant, Thomas E. Hambleton, and that they must find a verdict in his favor.” The refusal of the Court to grant this instruction forms the subject of the first bill of exceptions. In actions for tort against several defendants, if, at the conclusion of the plaintiff’s' case, there is no evidence against one of the defendants, he is entitled to be acquitted; “so that all defendants, not fixed by the plaintiff’s evidence, are to be acquitted before any part of the defence is gone into.” This, said Parke, J., was the unanimous opinion of all the judges. Child vs. Chamberlain, 6 Car. & Payne, 213. (25 Eng. C. L. R., 362.) Such practice is conformable to reason, and necessary for the furtherance of'justice; otherwise, it would be in the power of a plaintiff to deprive a defendant of the benefit of materia] and competent witnesses, by joining them in the action. See Brown and others, vs. Howard, 14 Johns., 119. Van Deusen vs. Van Slyck, 15 Johns., 225. Beasley vs. Bradley, 2 Swan’s (Ten.) R., 180. But the rule on this subject, laid down in the books, as correctly stated by Oh. J. Thompson, in Brown vs. Howard, is, “that if there is any, even the slightest evidence against a party defendant, he cannot be discharged as a party, and received as a witness.” And he adds, “that the want of evidence against [48] a party, in order to entitle him to be a witness, should be so glaring and obvious as to afford strong grounds of belief that he was arbitrarily made a defendant to prevent his testimony.” 14 Johns. R., 122. Applying this rule to the case before us, avo are of opinion that the decision of the Court of Common Pleas, as •stated in the first bill of exceptions, was correct. The evidence on the part of the plaintiff, showed that the horse was hired on the 4th day of July, by Francis H. Hambleton. On the next day both the defendants, riding together, stopped, on their Avay to the city of Baltimore, at the house •of John 0. Price, in Baltimore county. The witness, Price, was unable to say which of them was driving. The horse at that time was foundered ; the witness advised them to go on, as he thought that with care the horse would be able to go to Baltimore, but offered to let them have another horse. On that evening both the defendants went to the livery stable of the plaintiff, and informed him where the horse then was. He was badly foundered, was placed in the hands of a veterinary surgeon, and died in a few days. From these facts, it was competent for the jury to infer that the contract of hiring, though made by one of the defendants, Avas in fact made on behalf of both ; or, if not, there Avas evidence from which the jury might find that both the defendants participated in the tortious act complained of. After all the evidence was concluded, the defendants offered two prayers, which were refused ; but no exception being taken to their rejection by the Court, they are not properly before us for consideration. Exception was taken by the defendants to the instruction girmn by the Court to the jury, and their second bill of exceptions brings up that instruction for review. It will be found ante page 45. We find no error in this instruction. It is not objectionable, as urged, on the ground that the facts of the hiring and use of the horse Avere assumed by the Court. Nor was [49] it erroneous in leaving to the jury to find that the defendants hired and used the horse. We have already said that there was evidence from which the jury might find that the horse was hired for and on behalf of "both defendants, and was used by thorn. The chief objection made in the argument, was that there was no evidence whatever to go to the jury in proof of any “ill-usage or neglect on the part of the defendants, or the want of, ordinary, reasonable and proper care,” in using the horse. ( Decided December 3rd, 1862.) We agree with the appellants’ counsel, that the onus of proving want of diligence, and reasonable and proper care, was on the plaintiff. This is the general rule, as stated in Story on Bailments, sec. 410 ; and there is nothing in the instruction to relieve the plaintiff below of that onus. But surely it cannot he said there was no evidence from which the jury might find a want of reasonable care in this case. The horse, when hired, was sound and in good condition; on the following evening, when returned, he was “badly foundered, hardly able to walk,” and died in a few days. One of the witnesses stated that, in his opinion, the horse was foundered by “bard driving.” On this last point several witnesses testify that a horse may he foundered when properly and carefully used. But that was a question for the jury, properly left to them by tbe Court’s instruction, and they found the fact against the appellants. We see no reason for disturbing the judgment. Judgment affirmed.