Atwood v. Boston Forwarding & Transfer Co., 185 Mass. 557

185 Mass. 557 | Mass. | 1904

Knowlton, O. J.

The plaintiffs’ horse was seriously injured through negligence for which the defendant is liable, and after unavailing efforts for nearly a month to cure him, he was killed. The exceptions relate to the question whether the plaintiffs, having a reasonable expectation that the horse could be cured and that their damages could be lessened by an attempt to cure him, are entitled to recover such a sum as they reasonably and prudently expended in making this attempt. The defendant asked the judge to rule that in no event can the damages exceed the value of the horse at the time of the injury.

When an animal is killed through the fault of the defendant, - the damage which the owner may recover is the value of the animal at the time of the injury. But if an animal is injured in such a way that proper care and attention reasonably may be expected to effect a cure, which will leave the damage from the injury much less than if he died, it is the duty of the owner to give it such care and attention, in order that the damages may not be augmented by neglect. Tindall v. Bell, 11 M. & W. 228. Groves v. Moses, 13 Minn. 335, 337. The expense properly incurred for this purpose is a part of the damage to the owner, for which he is entitled to compensation, as well as for the diminution in value or other loss that may finally result directly from the injury notwithstanding these efforts. Gillett v. Western Railroad, 8 Allen, 560. Johnson v. Holyoke, 105 Mass. 80. Wheeler v. Townshend, 42 Vt. 15. Streett v. Laumier, 34 Mo. 469. These expenses, reasonably incurred in making a proper effort to diminish the loss, are to be paid as well when the effort is unavailing as when it is successful. It would be most unjust to impose upon an owner the duty of trying to effect a cure, if that is what ought to be done, and to leave him remediless for expenses so incurred, if his attempt proves unsuccessful. Of course he is bound to act in good faith and to exercise a sound discretion, so as not to make an unreasonable expenditure, in reference to the probability of diminishing the damages; but if money is prudently expended in the hope of mitigating the injury, and notwithstanding this the animal is lost, there is no good reason why this expense, as well as the value of the animal, should not be included as a part of the damages. This is in accordance with the weight of authority. Watson v. Proprietors of Lisbon Bridge, 14 Maine, 201. Commissioners of Sullivan County v. Arnett, 116 Ind. 438,444. Gulf, Colorado & Santa Fe Railway v. Keith, 74 Tex. 287. St. Louis, Iron Mountain & Southern Railway v. Biggs, 50 Ark. 169. See also Ellis v. Hilton, 78 Mich. 150 ; Sedgw. Dam. (8th ed.) § 438 ; Suth. Dam. (3d ed.) § 67. We are of opinion that there was no error in the ruling given on this point.

The defendant contends that the jury ought not to have been instructed to add interest in making up their verdict. We think that in this Commonwealth interest eo nomine is not allowed in this class of cases, but that, in determining the amount of damages, the jury may consider the lapse of time since the injury, and the fact that their assessment is to be made on the day of the verdict for a loss which occurred a long time before. This may be necessary to make the compensation adequate. Frazer v. Bigelow Carpet Co. 141 Mass. 126. Ainsworth v. Lakin, 180 Mass. 397, 402. For the reasons stated in the case last cited, we do not think the defendant is shown to have been injured, so as to make a new trial necessary.

Exceptions overruled.