55 N.H. 574 | N.H. | 1875
Lead Opinion
Bailment for hire — Degree of care. This was a bailment for hire, and the plaintiff was bound to use ordinary diligence and care in the protection of the property hired. What ordinary diligence is, varies in degree according to the nature of the property and the circumstances of each particular case. It means "that degree of care, attention, and exertion, which, under the circumstances, a man of ordinary prudence and discretion would exercise, in reference to the particular thing, were it his own; or which the generality of mankind use in keeping their own goods of the same kind." 2 Hill. on Torts, ch. 29, sec. 8, p. 610, citing Mayor, c., v. Howard, 6 Geo. 213.
The judge, who tried the cause without a jury, has reported the facts found; and the question transferred is, whether, upon the facts reported, the defendant used ordinary care and diligence in the care of the plaintiff's horse. It appears that, on the morning of the day the horse was injured, he was properly fed and watered at a seasonable hour by the defendant, and was left in a suitable place; that the defendant went away, giving no directions to any one to care for the horse, expecting to return in season to attend to it himself, which he in fact did; that he knew the boy was at home, but he informed no one when he should return, or that he should return in season to attend to the horse himself; that the boy's interference with the horse was with no malicious intent, and was, under the circumstances, natural, and what it would be reasonable to apprehend he would do; that it was negligence to let the horse loose in the manner in which it was let loose; and that this negligence caused the injury complained of. Under this state of facts, it cannot be said that the defendant did not exercise the same degree of care which might be expected from a prudent man towards his own horse. What he had reason to apprehend was, that the boy might attempt to water the horse, not that the boy would turn him loose, and the horse thereby become injured. If the defendant had had reason to apprehend that the boy would turn the horse loose, and that the horse would become injured in consequence thereof, a different question would be presented for our consideration. The case, however, only finds that he had reason to apprehend that the boy would attempt to water the horse, and that affords no evidence of lack of ordinary care and prudence.
There is another ground upon which the verdict must be set aside. The plaintiff was permitted to introduce evidence tending to show that the boy had been accustomed to care for horses put up at that place. *579 The defendant then offered to prove the custom of taking care of horses at that place, but the evidence was excluded. If the plaintiff seeks to make the defendant liable for the act of the boy because he was accustomed to care for horses at that barn, the defendant should have been permitted to show what that custom was. The plaintiff having shown the custom in part, the defendant was entitled to show the whole of it.
Concurrence Opinion
It appears from the case, that evidence was offered tending to show that the boy, by whose negligence the accident was occasioned, was accustomed to care for the horses that were left there, and that, under the circumstances, the defendant might reasonably have expected that the boy would have undertaken to water the horse if no directions were given him to the contrary. All this evidence was in fact evidence of the custom of that place, and of the same nature as that which was excluded, and which ought to have been admitted so as to have the whole custom before the court.
The court has found that the negligence of the boy occasioned the accident. I can see no way by which the defendant can be made responsible for this carelessness of the boy, unless the fact found, that he ought reasonably to have expected, under the circumstances, that the boy would interfere, amounted in fact to an employment of the boy, so as to make the defendant liable for the negligence of the boy as his servant.
I do not think that the court could safely infer what the defendant ought to have expected, without having the whole evidence of the custom of the place proved.
It appears to me, therefore, that the evidence was improperly rejected, and that, for this reason the verdict must be set aside.
LADD, J. I also think the facts reported show no ground upon which the defendant can legally be held liable for the injury to the horse. The injury happened by reason of the negligence of the boy in turning it loose into the yard. Upon what ground was the defendant chargeable for that?
An amendment to the case states that the boy's interference with the horse was, under all the circumstances of his being at Mrs. Caverly's, and the circumstances and silence of the defendant in leaving the horse there, natural, and what it would be reasonable to apprehend he would do. Whatever may be meant by this singularly loose and conjectural statement, it is all I find to connect the defendant with the boy's act at all, unless it may be the fact that he knew the boy was at home. Was the boy (being sixteen years old) incompetent to water a horse? Nothing of that kind appears. Did the defendant know his incapacity? Of course that does not appear, because it does not appear that he was incompetent for that service. The amount of it is, that, having properly taken care of the horse himself, and given no directions that anything further should be done with the animal either by the boy or anybody else, he went away about his business, and this he did with *580 knowledge that there was a boy sixteen years old about the premises. If the boy had been a wolf and the horse a lamb, it might have been a want of ordinary care to go away without chaining the wolf, or putting the lamb in some place where it would be safe against his attacks. If it were found anywhere in the case or the amendment that a person of average prudence would not only have apprehended an interference by the boy with the horse (that is, that he would attempt to water the animal), but, further, would have foreseen that such interference would be likely to result in injury, so that he ought to have provided in some way that the interference should not occur, there would be ground to argue that the defendant was guilty of negligence in going away as he did without placing a guard over the horse, or in some other way providing for its safety as against the boy in his absence. As it is, I am entirely at loss to understand upon what conceivable ground it can be supposed that the defendant is responsible for the consequences of the boy's act in turning the horse loose into the yard.
Verdict set aside.