224 Pa. 154 | Pa. | 1909
Opinion by
This is an action of trespass to recover damages for injuries caused by the vicious acts of a horse. The defendant is a livery-stable keeper in the city of Philadelphia, and for several months prior to November 12, 1906, the plaintiff had hired of him a horse to be used for drawing a delivery wagon
The mare was harnessed to a light wagon and the plaintiff started on his drive about the city. Within half an hour after the animal was hired she suddenly, without any apparent cause, started to kick violently and finally ran off. She kicked the dashboard off, hit plaintiff above the eye, and kicked the seat from under the plaintiff. While she was running, the wagon violently struck a truck standing on the street, broke the front axle at the hub and threw the plaintiff out. He was knocked unconscious and was severely injured.
This action was brought to recover damages for the injuries which the plaintiff sustained. On the trial of the cause the above facts were made to appear; and witnesses were also called who testified that the conduct of the mare on the occasion of the accident showed that she was not mild, kind and gentle, but was wild and vicious, and that a gentle horse would not act as she did.
These witnesses were owners of horses and knew their habits, traits and dispositions. The learned judge directed the jury to find a verdict for the defendant on the ground that there was “no evidence that the defendant knew or by the exercise of reasonable care could have known that the mare was unsuitable for use, if in fact she was so.” The plaintiff has taken this appeal.
The relation between a livery-stable keeper and his customer is that of bailor and bailee for hire, and the former assumes the liability which the contract of bailment imposes. When the bailor lets a horse for hire he impliedly promises or war
In the case at bar, therefore, the questions were whether the mare was vicious and unsuitable for the purpose for which she was hired, and whether the defendant knew or by the exercise of reasonable care should have known the fact. The burden of establishing both propositions was on the plaintiff. He assumed the burden and introduced evidence to show the vicious conduct of the mare at the time she became unmanageable and injured the plaintiff. In addition to this, witnesses were called whose familiarity with horses, their dispositions and habits, gave their testimony weight, and they testified that the actions of the mare on that occasion showed that she was not gentle or kindly disposed, but was wild and unmanageable. We think the evidence, if believed by the jury, was sufficient to show a breach of the defendant's implied warranty that the mare was fit and suitable for the service for which she was hired, and that the defendant was negligent in not furnishing the plaintiff a gentle and suitable animal. Such evidence having been introduced by the plaintiff, the burden was then imposed upon the defendant of satisfying the jury that the animal was not vicious or unruly or that he was ignorant of the vicious character of the animal and had exercised proper care to inform himself as to its habits. The defendant may also show as a defense, that the conduct of the animal was
It has been suggested that the plaintiff’s statement sets forth a special warranty and that, therefore, he cannot recover upon the implied warranty which arises from the contract of hiring. This position is not tenable. The statement is amply sufficient to show the contract of hiring out of which an implied warranty arises, and if in addition to such warranty the statement contains an averment of a special warranty it will not prevent the plaintiff, if the evidence is sufficient, from recovering upon the implied warranty: Windle v. Jordan, 75 Me. 149. In that case it was contended that the plaintiff was confined to a special warranty, but the court said: “It is true that the plaintiff and his witness to the contract of hiring, testify that both the defendant and his hostler recommended and warranted the horse, except in the matter of laziness, but that testimony was not essential to the plaintiff’s case. When it was proved and admitted that the defendant was a livery-stable keeper and that he let the horse for hire to the plaintiff for the trip, the law settles the contract upon the breach of which the plaintiff counts.”
The learned trial judge evidently thought that this case belonged to that class of cases in which it is held that before a person who has been injured by a vicious animal can recover against the owner .he must show that the owner knew of the animal’s vicious propensities. This was a misapprehension of the law. The owner of a vicious dog who bites another is re
The statement in this case sufficiently avers a breach of an implied warranty on the part of the livery-stable keeper of the suitableness of the animal let to the plaintiff. It also avers facts sufficient to show negligence on the part of the defendant in that he did not exercise proper care in ascertaining the vicious nature of the animal, a fact which could have been known to the defendant had he used the diligence and care required of him. There was no demurrer to the statement. The courts, however, have, in this class of cases, permitted the plaintiff to enforce his right to damages by an action for a breach of the implied warranty or by an action in tort for negligence. The question was distinctly ruled in Hyman v. Nye, L. R. 6 Q. B. Div. 685. In that case Lindley, J., said (p. 689): “It was objected on the part of the defendant that the plaintiff had in his statement of claim based his case on negligence on the part of the defendant, and not on any breach of warranty express or implied. . . . But the absence of such care as a person is by law bound to take is negligence; and whether the plaintiff sues the defendant in tort for negligence in not having supplied such a fit and proper carriagé as he ought to have supplied, or whether the plaintiff sues him in contract for the breach of an implied warranty that .the carriage was as fit and proper as it ought to have been, appears to me wholly immaterial.” None of the cases on the subject, so far as we have seen, give any attention to whether the action was founded upon a technical warranty or upon negligence.
We think the evidence was sufficient to send the case to
The judgment is reversed with a venire facias de novo.