In plaintiff’s petition, it is alleged, that there was a span of horses, attached tо a wagon, hitched to a post in front of defendant’s business house in the city of Joрlin, and that defendant, by means of a hose, while sprinkling water on his pavement, “willfully, maliсiously, negligently and without reasonable cause, intending to injure plaintiff and others,” turnеd the hose and threw a stream of water upon said horses, by 'which they were frightened and broke loose, and, running down a street of said city, collided with plaintiff’s horse and wagon, then being driven by plaintiff’s servant, whereby the injury complained of was occasioned. The evidence is not preserved b}7 the bill of exceptions, but it statеd that, on the part of plaintiff', it tended to sustain the issues on his part. The court refusеd to instruct the jury, at the close of plaintiff’s evidence, that, on the pleadings аnd evidence, he could not recover, but for plaintiff, instructed the jury, that if defendant willfully and intentionally threw the water upon or under the horses, which frightened and caused them to break loose and run through the street, arid they
The horses which ran against plaintiff’s horse and wagon, were not thе property of defendant, but of another. This, however, is wholly immaterial in the consideration of the question involved. The defendant, as the jury found, willfully turned the hose upоn the horses, which were hitched to the post,.and the injury to plaintiff’s property wаs a direct result of his act. While one is not presumed to know the disposition or habits peculiar to particular animals, but only the disposition and habits which are сommon to that species of animal, every one is chargeable with notice of the generic disposition of any kind of animal, wild or tame, to stray, and of its liability to take fright. This is substantially the doctrine stated by Shearman•& Redfield in their work on Negligence, section 188, cited by appellant’s counsel. In the celebrated case of Scott v. Shepherd,
The case bears but little resemblance to that of Illidge v. Goodwin, 5 Carr. & P. 190, cited by appellant’s counsel. There the owner of a horse, drawing a cart, left the horse standing loose in the strеet; but the defendant offered to prove that the horse was of a gentle, quiеt nature, and would have stood where he was left, but that a mischievous person struck him and he backed against plaintiff’s window and broke his chiná-ware. Tin dal, J., said this did not amount tо a defense. “ If a man chooses to leave a cart standing in the street, he must take the risk of any mischief that may be done.” It was not determined — it was not a question in the case — whether the person who struck the horse would also have beеn liable to plaintiff. We have no doubt he would. In the case at bar, Turk, who owned the horses, was not liable. He had hitched his horses to the post, and, but for the willful act of defendant, they would probably have stood there until removed by their owner; and if the law would afford no redress to the plaintiff, in such a case, it would be lamentably defective. The judgment is affirmed,