Laird v. Snyder

Sherwood, J. The plaintiff is a livery-stable keeper, residing at Three Eivers. On the twenty-third day of November, 1884, the defendant hired a team and buggy of the plaintiff to drive from Three Eivers to some point near Burr Oak and return. The defendant started out with the team about half-past 7 o’clock in the morning of the same day, taking in with him another person on the way, drove to Burr Oak, and after stopping there an hour and a half they continued on to a Mr. Beard’s, which was about six miles southeast of Burr Oak, and returned to Three Eivers in the evening, about 10 o’clock, after having driven the horses about sixty or sixty-five miles. The weather was rainy, cold, and sleety, and the roads very muddy and heavy. The horses were taken from [407] the wagon as soon as they returned to the stable at Three Rivers, and placed in the barn. One of them died almost immediately, and the other horse was found to be lame and nearly exhausted from fatigue from the drive ; very soon lay down and Was unable to get up for two days, and was unable to work for two or three weeks. He was found to be injured and wind-broken to the extent that he never recovered, and his value was greatly lessened. The evidence tended to show, upon the trial, that the horses, when taken by the defendant, were worth about $400, and both well and hearty ; that the horse that died was worth $225, and the other about $175; that the injury to the latter was half his value. The plaintiff brought his action against the defendant to recover for the value of the horse that died, and for .the injury done to the other, basing his claim therefor upon the negligence of the defendant in overdriving the teamq and upon the improper treatment and care given them while in : his possession. The cause was tried in the St. Joseph circuit, before a jury. The plaintiff recovered a judgment for $226.16 dam- • ages. Defendant brings error. Twelve errors are assigned, of which six relate to the rulings on admitting the testimony." When the team came home, the wagon and team both, the testimony tended to show, were nearly covered with frozen mud; that large quantities were thrown upon the top of the buggy. Counsel for plaintiff asked witness Laird : “If the horses were driven at an average gait, state whether or not the mud would fly on the top of the carriage.” This was objected to as irrelevant and immaterial, and the court allowed the witness to answer : “ In ordinary going mud won’t fly on top of a carriage top.” The witness was the plaintiff. He appears to have been competent to speak upon the subject, and the testimony was relevant. It tended to show the rate of speed at which the [408] team, had been driven. No error was committed in this ruling. In giving testimony in regard to the condition of the horse which died the plaintiff was asked by his counsel: “What effect did this drive have on the other horse?” “ State if it affected the wind of the other horse.” Both these questions were objected to upon the ground that they called for the conclusion of the witness. To the first question the witness answered : “The horse was lame. He would not stand upon his feet for a couple of days; laid down all the time. We could not get him up.” To the other, witness answered: “Yes, it did. If you drive him a little fast he kind of foams and pants, and he never did it before.” We do not think the defendant’s case was prejudiced by this testimony. The questions might be regarded a technical infringement of the rule, but for the witness’s experience with, and previous knowledge of the horses, and their peculiarities and- condition; under the circumstances, as they appeared in this case, we are not prepared to say the questions were objectionable. Neither do we think the jury could have considered them as calling for anything more than facts the plaintiff had observed, not as an expert, but from'his previous care, use, and management of the horses. Evidently the witness so understood them, and in his answers thereto gave the facts upon which his conclusions were based, so that if they were wrong the jury could correct them. The following question was also asked of plaintiff, when upon the stand, upon the subject of damages: “ What was the difference between the value of the horse on the morning that the defendant took him, and his value when he brought him back that night ?” This was also objected to upon the same ground, and the witness was allowed to answer : “ One-half his value, anyway, if not more.” We think, upon this question, the witness was fully quali [409] fied to speak, as the testimony stood, and there was no error in allowing him to answer. Neither was there any error in allowing witness, Grout, to give his judgment as to the value of the team upon the subject of damages. We have examined the record carefully, and find that so much of defendant’s requests as was necessary to be given, was included in the charge of the court, and we find no error in that part of the charge given upon the court’s own motion. The judgment must be affirmed. Campbell, C. J., concurred ; Morse, J., concurred in the result; Champlin, J., did not sit.