Griggs v. Fleckenstein

By the Court McMillaN, J. The.plaintiff brings this — 92 — action to recover damages for the loss of a horse, which was killed under the following circumstances: The defendant left his team, consisting of a span of horses and a double sleigh attached thereto, standing in the principal business street in the town of Faribault, without being hitched, fastened, held or in any manner secured. It started and ran violently along the street, and against another team belonging to one Mathews, likewise consisting of two horses attached to a double sleigh, standing properly hitched, at the side of the street, frightening the latter team, so that it broke loose, and ran with the sleigh attached to it, across the street and against a horse and sleigh belonging to the plaintiff, breaking the plaintiff’s .sleigh and injuring Ms horse, so that he died in two or three days thereafter. There is evidence tending to show that before the defendant’s horses ran into Mathew’s team, and while they were running down the street, a crowd of persons came out into the street, and hallooed and raised their hats, for the purpose of stopping the horses; that this occasioned the horses to swerve from the course they were taking, and drove them across the street,, so that they hit Mathew’s team. The plaintiff’s horse at the time of the injury was unhitched, .and at the side of the street. The plaintiff’s son, who had driven 'his father’s horse to this place, left him unhitched and went into a store near by ; he testified upon the trial, that while in the store he heard the first runaway team (defendant’s) as“it passed, and went out on the sidewalk, and was on the sidewalk about eight feet from his horse when it was injured; then he saw a pair of horses with sleigh running down the street; they started his father’s horse, which was standing near the sidewalk in the street, a few feet from the place he had left him ; that he spoke to the horse and he stopped, and immediately the pole of the other double sleigh struck — 93 — his horse. There is testimony on the part of the defendant tending to show that when the first runaway team passed, it started the plaintiff’s horse ; that he turned and moved towards the street, and that if the plaintiff’s horse had not stirred, the second team would have passed without hitting him. Upon the trial of the cause, the plaintiff being upon the stand as a witness on his own behalf, the plaintiff’s counsel asked the witness the following question : “Was the horse trustworthy to stand unhitched in the street? ” objected to by defendant’s counsel on the ground that it was immaterial. The objection was sustained by the Court, aud the question excluded, to which the plaintiff excepted. Several exceptions were taken by the plaintiff to the refusal of the Court to charge in accordance with requests submitted by him, and to the charge of the Court in accordance with requests submitted by the defendant, which we need not consider in detail. The case involves, substantially, three points. 1. The effect upon the rights of the parties to this action of the conduct óf the persons or crowd in hallooing and waving their hats in front of the runaway team of defend-_ ant in order to stop it.. 2. The effect upon the plaintiff’s right to recover, of the fact that the horse had been left unhitched in the street. 3. The admissibility of the evidence sought to be elicited by the question put to the plaintiff as a witness. . The rule of law'is well settled, that where the plaintiff has been injured in his person or property by the wrongful act or omission of the defendant, or through his culpable negligence, the fact that a third party, by bis wrong or negligence, contributed to the injury, does not relieve the de — 94 — fendant from liability. McMahon v. Davidson, 12 Minn., 372-3. There is no controversy about the fact that the running-away of the defendant’s team was attributable to and occurred at first through the negligence of the defendant. The team had not stopped, or been at all restrained in their flight, at the time of the appearance of the persons or crowd in the street; the attempt to stop the team was not successful, but as we have seen, may have swerved the horses from the direct course in which they were going, and occasioned 'the collision with the Mathews team hitched at the side of the street. The attempt to stop the team in their course through the street, was certainly proper, and would ordinarily be expected’; under, such circumstances there is nothing in 'the testimony which tends to show, that there was anything wrongful, careless or improper in the means resorted to by these persons to accomplish this purpose; they are therefore entirely innocent, and free from blame. ' If they contributed to the injury in any degree, they were innocent agents in the matter; and as their interference in this manner was proper, and was such an interference as would be embraced in the ordinary results of such an occurrence as this runaway, it would in nowise excuse the defendant, or relieve him from the injury resulting from the runaway, which occurred through his negligence. The testimony all shows that the defendant’s team, did not stop from the time it started to run away, at the Post Office, until after it came in collision with, and started the Mathews team; that the interposition of the crowd or persons in the street, was Tor the purpose of stopping the runaway team, and before its collision; nor is there any evidence to show that the team would have stopped if the crowd had not interposed, It is evident therefore, that the running away, from the — 95 — starting of defendant’s team till the collision, was a single occurrence ; and whatever influence the interposition of the crowd had in occasioning the collision, it was not the sole cause of it; that the running away which occurred through the defendant’s negligence was, in part at least, the occasion of it i both causes therefore, in the most favorable view for. the defendant, must have contributed to it; and as the defendant is responsible through.his negligence for one of the agencies through which the injury occurred, under the rule we have stated, he is liable, although without the -agency of both causes the accident would not have transpired. Mathews’ team it appears, was hitched to a post in front of McGne-ry’s store, and there is nothing tending to show any negligence or carelessness on the part of the owner of the team. The immediate cause of the starting of Mathews’ team, was the collision of the defendant’s team with it, and the injury of the plaintiff’s horse was caused directly by Mathews’ team striking- it. This brings the case within the rule, that the injury must be the natural and proximate result of the act complained of. The collision with - Mathews’ team was the natural, but not necessary, consequence of the running away of defendant’s team in the street. All the consequences which actually resulted in this case from the running away of defendant’s team, might, we think, reasonably have been expected to occur by the running away of ány team, under similar circumstances, in the principal business street of a town, and the running away of the defendant’s team, was the efficient cause of the injury to plaintiff’s horse, because it put in operation the force, which was the immediate and direct cause of the injury. 2 Greenl. Ev. secs. 256, 268, 268 a ; 3 Parsons on Cont., 179-80. Por these reasons, the first and second requests submitted by the plaintiff, which were refused, should have been — 96 — given to the jury ; and the first request submitted by the defendant, as ■ explained and modified by the court, together with the third request submitted by the defendant, and given in charge to the jury, should have been refused. It is also a well-settled rule, that in an action for injury to person or property, the plaintiff cannot recover if he contributed to the injury by his own culpable negligence, or if, by the exercise of ordinary care, he could have avoided the injury. 1 Ch. Pl. 127, p. 4, authorities cited. The question of the plaintiff's negligence in this case was one of fact, to be determined by the jury, under the instructions of the court as to what constitutes negligence. St. Paul vs. Kuby, 8 Minn. 171; Johnson vs. Winona and St. P. P. R. Co. 11 Mimi., 307. The degree of care required of the plaintiff, or those in -charge of his horse at the time of'the injury, is that which would be exercised by a person of ordinary care and prudence under like circumstances. It cannot be said that the fact of leaving the horse unhitched is in itself negligence ; whether it is negligence to leave a horse unhitched, must depend upon the disposition of the horse ; whether he was under the observation and control of some person all the time, and many other circumstances,, and is a question to be determined by the jury from the facts of each case. Lynch vs. Nurdin, 1 Ad. & El., N. S. 29 ; 1 Hilliard on Torts, 154; Park vs. O'Brien 23 Conn, 339. It was, therefore, proper for the plaintiff to show, by his testimony, • that his horse was trustworthy to stand unhitched in the street, and the question put to the witness for that purpose, should have been permitted. It was also erroneous to charge the jury that “ the leaving of the plaintiff’s horse in the street unhitched, was an act of negligence.” For the reasons stated, the judgment below is reversed, and the verdict of the jury set aside and a new trial granted.