34 Conn. 377 | Conn. | 1867
The defendants in this case, by demurring to the declaration, defaulted as to the facts sufficiently alleged and essential to constitute a cause of action, and thereby admitted them. When their demurrer was overruled their case stood as upon default, with all the essential elements of the cause of action and the right of the plaintiffs to recover some damages, conclusively admitted.
But by the rules of. law applicable to the case the allegations respecting the extent of the injury done the plaintiffs and the consequent amount of damages to which they were entitled, were not admitted. On the hearing in damages therefore it was incumbent upon the plaintiffs to show the extent to which they had been injured by the fault or negligence of the defendants, although, for the' reason stated, it was not incumbent upon them to prove the exercise of ordinary care, or any other element of the cause of action.
On this hearing in damages it was competent for the defendants to prove any fact or circumstance tending to show that the injury was not occasioned wholly or at all by their negligence, but was occasioned wholly or in part by the negligence of the plaintiffs. But in proving these facts the defendants assumed the burden. If they proved them, the court might take them into consideration in fixing the amount of damages. Did the defendants in this case prove and has the court found that the injury was occasioned wholly or in part by the fault of the plaintiffs, so that the actual damage found by the court to have been three hundred and fifty dollars ought to be reduced to the substantially nominal sum of twenty-five dollars ?
The defendants claim that they did prove that the injury resulted in part from the want of ordinary care in the plaintiffs and that the court has substantially so found. *
The court has not so found in terms. It has found that
The defendants insist that he is, but none of the cases cited go so far, and upon principle we do not think the claim can be sustained.
How the plaintiffs came to be driving a vicious horse without knowing that he was vicious does not appear. If, as was suggested in the argument, the horse was hired for the particular occasion at a livery stable, how shall we say in the absence of any finding of the fact by the court below that there was a want of ordinary care in hiring him ? Shall we say that they did not apply for a gentle horse, or did not inquire into the character of the horse when furnished them ? And why assume that to be true rather than that they did inquire, and that the livery man was one in whom they had a right to confide, and that he informed them that the horse was gentle. We think it obvious that we cannot infer a want of ordinary care from the mere fact that the plaintiffs were driving a vicious horse of whose disposition they were ignorant.
It was claimed upon the argument that when the defendants proved that the horse which the plaintiffs were driving was vicious, and that his viciousness contributed to the accident, the burden was shifted upon the plaintiffs to show that they exercised ordinary care in procuring and using him. At the first blush the claim seems plausible; and on the trial, if urged to the court or jury as sufficient prima facie evidence of the fact, if unexplained by the plaintiffs, it may have been entitled to consideration. But the claim is not in place here. There is no rule of law which would justify us iu regarding it. What is called “the burden of proof” is
The superior court must therefore be advised to render judgment for the largest sum.
In this opinion Hinman, O. J. and Carpenter, J. concurred. Park, J. thought the smallest sum should be the amount of the damages. He thought the fact that the plaintiff was driving a vicious horse was sufficient to raise a prima facie case of negligence on his part, and that he was to be regarded therefore as having brought the injury upon himself;
