47 A. 215 | R.I. | 1900
The evidence shows that the plaintiff was run into by the defendant's team on a public highway in the *212 town of East Providence on the evening of September 4th, 1899, and seriously injured, and that the plaintiff was free from contributory negligence at the time. He was riding on his bicycle and was on the extreme right-hand side of the road, which, at the place where the accident happened, was about sixty feet wide.
It appears that the defendant's horse had shied at some lighted electric cars shortly before reaching the place of the accident, and was going at an unusual rate of speed when he reached a point opposite the plaintiff, and that he then shied at two other lighted electric cars which were standing on the switch, and ran into the plaintiff. There is evidence that the driver of the team did not have it under proper control at the time; and we think it was competent for the jury to find that he was not in the exercise of due care in this regard. He was going, according to his own testimony, at the rate of from twelve to fifteen miles an hour, on a country road, after dark; and there is evidence that the horse was a green one and had previously shied at electric cars to the knowledge both of the driver and the defendant.
In view of these facts we cannot say that it clearly appears that the jury were not warranted in finding that the defendant was responsible for the injury which the plaintiff suffered. The case is rather a close one, but after carefully considering all of the evidence we do not feel that we can properly disturb the verdict of the jury.
The point taken by defendant, that the plaintiff could not be permitted to prove that the horse was a green one and had previously shied at electric cars because the declaration contained no allegation to that effect, is untenable. The character of the horse, as ruled by the presiding justice, had a direct bearing upon the question of the defendant's negligence. That is to say: if the horse was an old and gentle one, well accustomed to the electric cars and never having shown any restiveness when passing them, a less degree of care would be required of the driver than when driving a green or fresh horse which had previously shied when passing such objects. For what is reasonable or due care depends, *213 in every case, on the subject-matter to which the care is to be applied and the circumstances attending that subject-matter at the time when care is required. Sullivan v. Scripture, 3 Allen, 564.
Petition for new trial denied, and case remitted to Common Pleas Division for judgment.