39 Colo. 148 | Colo. | 1907
delivered tbe opinion of tbe court;
Tbe plaintiff Cangblin says be left bis bicycle on 15th street in tbe city of Denver leaning against
Por injuries of this character, the cause of action is negligence. Plaintiff in his complaint expressly grounded his action upon defendant’s negligence in leaving the team and wagon in the street without any person in charge. Prom the admissions of the parties and specific findings of the court upon evidence which, though not altogether harmonious as to some minor particulars, as to important matters is not conflicting, it appears that defendant’s driver has been employed for more than a year, and the team, though one of the horses was used only a short time, were very gentle and quiet, had traveled this same route every day, and had never been known to be frightened, or to show evidence of viciousness. On the morning of the accident, after plaintiff left his bicycle on 15th street, placing it in the ordinary way in which riders do, he went into Thompson’s grocery store, and the defendant’s driver with a team of horses drove up in front of the store, whether before or after plaintiff alighted from his bicycle the
The horses were not hitched-to any permanent object, but were restrained or held in check by means of an iron weight. To this piece of iron, weighing 56 pounds, which is carried in the wagon or hangs suspended therefrom when the horses are traveling, are attached two' broad straps, one by which the weight is lifted from, and dropped to, the ground, and the other passes along under the tongue of the wagon to within about four feet of the heads of the horses. Fastened to this broad strap at this point is a ring, and connected with this ring are two other straps, one running to the mouth of each horse and attached to the rings of the bridle bits on both sides of his mouth, so that when the weight is dropped from the wagon, and the horses attempt to move, the strap pulls upon the bits of the horses on both sides at the same time.
The appellant’s position is that the act of defendant’s driver in leaving the team and wagon standing in the street as he did was negligence per se for which the defendant is liable in damages for any mischief that the horses may do. It is not the law
The very cases cited by plaintiff show that where some restraint has been placed upon horses left standing in a street, the question whether such act is due care or negligence is for the jury to determine from all the facts and circumstances surrounding the transaction. Such was the case of Rumsey v. Nelson, 58 Vt. 590. There it was said "that it might be considered as negligence in the fastening or leaving unattended of one horse that would not be so considered in another, and for that reason the character of the horse as being gentle or vicious is relevant.
In Pearl v. Macauley, 39 N. Y. Supp. 472, which was an action for personal injuries which resulted from plaintiff’s being knocked down and run over by defendant’s horse and wagon which had been left unattended in the street, the court instructed the jury that whether the act of the defendant was negligence for which he was responsible was for them to determine, and if the horse was not properly secured, defendant may be liable, otherwise not.
In his valuable work on the Law of Torts (4th ed.), at page 442, Mr. Pollock says that the judgment of that case itself suggests the possibility of exceptions, and that the tendency of later decisions has been rather to encourage the discovery of exceptions than otherwise. He further suggests that the policy of the law might have been satisfied by requiring the defendant to insure diligence in proportion to the manifest risk, instead of making him in such cases an absolute insurer, and says: “Yet no case, has been found, not being, closely similar in its facts, or within some previously recognized category, in which the unqualified rule of liability without proof of negligence has been enforced.”
This court in the case of G. B. & L. Ry. Co. v. Eagles, 9 Colo. 544, cited the ease, not, however, to the proposition asserted by this plaintiff, but in support of the doctrine that, in general, if a voluntary act, lawful in itself, may naturally and proximately result in the injury of another or the violation of his legal rights, the actor must at.his peril see to it that such injury does not follow.
* Whatever may be said of the unqualified doctrine of the English case, concerning which we express no opinion, it is not applicable to the case in hand. Here the defendant'was lawfully on the highway with its team and wagon. While it is possible that an injury might be caused by leaving the team restrained as it was, we cannot say, either as a question of law or of fact, that it was the natural or probable result of such act that the team would break loose and cause mischief. All the cases upon this and analogous questions which we have been able to find decided by the courts of this country lay down the rule that the cause of action is based upon negligence, and negligence must be established by the plaintiff, or he cannot recover.
In addition to the cases already cited, Belles v. Kellner, 57 L. R. A. 627, is a good illustration. Quoting from Griggs v. Fleckenstein, 14 Minn. 81,
The findings of the trial court are entitled to the same consideration at our hands as the verdict of a jury. It found that the fastening or restraining of the defendant’s horses by means of the weight was a prudent and reasonable act of care upon its part, and we cannot say that the findings are not supported by the evidence. Equally honest and intelligent men'might differ as to whether leaving the team and wagon as the defendant did was the exercise of proper care or a negligent act. The court below was of the opinion that it was a proper degree of care, and we cannot interfere with that finding.
The plaintiff apparently places reliance upon an observation of Tindal, C. J., in Illidge v. Goodwin, 5 C. & P. 190, which is cited and approved in Colo. Mortgage Co. v. Rees, 21 Colo. 435, 446. That was a case where the plaintiff was injured by a horse which was attached to a cart and left standing in the street by the defendant without any person to watch them, and no attempt was made to hitch or in any way restrain the animal. The remark of the court was in answer to the suggestion of counsel for defendant that the horse was frightened by a third person passing and striking the same, and that the particular injury was caused by the bad manage
It must be borne in mind that this observation was made for the purpose of showing that though there may have been an intervening cause, yet if the injury would not have occurred but for the negligence of the defendant, the latter is nevertheless liable. To the same point the case was cited in the Bees case, supra. The facts in the Illidge case were that the defendant himself had said that the horse was given to backing, and it was very wrong for the man to. leave it in the street. As applicable to the facts before the court and bearing on the question of intervening, cause, the Chief Justice was right, but it is not the law in this country, and we apprehend it never has been the law in England, that the owner of a gentle horse who leaves it standing in a street, fastened as an ordinarily prudent man would fasten such an animal in like circumstances, is responsible in damages for whatever injuries may occur if the horse breaks loose.
In City of Denver v. Utzler, 38 Colo. 300, the court in effect said that a person who leaves his horse in a public highway must use ordinary care and prudence in fastening or restraining the same so as to prevent injuries. This, accords with the doctrine we have declared in this case.
In behalf of the defendant was admitted in evidence an ordinance of the city of Denver which imposes a penalty upon any person who leaves any horse or other animal attached to a wagon in any street in the city without securely fastening such horse, or without the same being fastened by chain or strap to a weight or some other stationary object,
Perceiving no error in the record, the judgment is affirmed. • Affirmed.
Chief Justice Steele and Mr. Justice Gabbert concur.__