Brunkow v. Waters

Winslow, J. Notwithstanding there was no new trial of the case in the circuit court it was the duty of the court to give judgment according to the weight of the evidence and the justice of the case without regard to the finding of the justice of the peace. Sec. 3769, Stats. (1898); Silvernail v. Rust, 88 Wis. 458, 60 N. W. 787. This court will not reverse the conclusions of fact of the circuit court in such a case unless [33] they are contrary to the clear preponderance of the evidence. Donner v. Genz, 129 Wis. 245, 107 N. W. 1039, 109 N. W. 71. The circuit judge concluded that the undisputed fact that the horses were running loose and unattended on the street raised an inference or presumption of negligence on the part of the owner, and that, in the absence of testimony to meet or overcome this presumption, it entitles the plaintiff to recover. There is considerable authority to support the proposition that the fact that a horse is running unattended upon the public street raises an inference or prima facie case of negligence on the part of the custodian which requires explanation. Thane v. Douglass, 102 Tenn. 307, 52 S. W. 155; 1 Thompson, Com. on Reg. § 1297, and cases cited. While this proposition is not universally held, it seems entirely reasonable in view of the fact that facts showing that the horse did not escape by reason of negligence, hut by reason of some occurrence consistent with the exercise of reasonable care, must ordinarily be within the knowledge of the custodian of the horse and rarely within the knowledge of the person injured. The question whether this inference goes so far as to charge the owner with responsibility for such negligence, or, in other words, to raise a presumption that the owner or his servant was in charge of the animal when it was negligently allowed to escape, is not so clear, although supported by authority; the ground being that ownership implies possession, and that in the absence of proof possession is presumed to be in the person entitled thereto. Norris v. Kohler, 41 N. Y. 42; Thane v. Douglass, supra. In the present case, however, we are not required to adopt this latter proposition. There was evidence here showing that the owner was on the ground immediately after the occurrence, thus showing his close proximity to the team when it escaped, that he assisted in separating the horses and took charge of them at once, and that he promised to make it all [34] right with the plaintiff. In the absence of evidence to tbe contrary, we think this evidence justifies the conclusion that the owner oí his servant was in charge of the horses when they escaped. By the Court. — Judgment affirmed.