Hawks v. Slusher

104 P. 883 | Or. | 1909

Mr. Justice Slater

delivered the opinion of the court.

1. The principal error complained of is the giving of the following instruction:

“If the defendant wrongfully and unlawfully assaulted the plaintiff and struck the plaintiff, and thereby frightened plaintiff’s horse, and as a result thereof plaintiff’s horse ran away with plaintiff’s buggy and harness, causing the injury to said horse and buggy and harness, or either of them, then the defendant is liable in damage to the plaintiff.”

And the refusal to give this:

“I instruct you that the doctrine of comparative negligence does not apply in this State, and, if the plaintiff is entitled to recover, it must be for the negligence of the defendant, without contributory negligence on his own part. If, therefore, you find from the evidence in this case that the plaintiff neglected to use ordinary care and prudence to prevent the horse from running away, which resulted in the injury complained of, then he cannot recover in this case.”

Another requested instruction, substantially of the same import as the above, but stated in somewhat different language, was also refused, as well as a request that the court give “a general instruction on contributory negligence.” It is contended by the defendant that, although he may have done an act in violation of law by committing a wrongful assault upon plaintiff, yet that would not deprive him of his right to allege and prove contributory negligence on the part of plaintiff whereby he suffered damage to his personal property. The complaint does not charge that the damages claimed by plaintiff arose from any negligence of defendant, but from an intentional and unlawful assault upon him. In order to constitute contributory negligence on the part of the plaintiff, there must be negligence charged against the defendant. An assault and battery is not negligence. The former is intentional, willful; the latter unintentional. Ruter v. Foy, 46 Iowa, 132. When the defendant’s conduct is willful, it is no longer negligence, and, when the injury sustained is the result of the wanton and willful act of the defendant, the defense of the plaintiff’s contributory negligence cannot arise. Beach, Contributory Negligence (2 ed.) § 64; 29 Cyc. 509. It seems to be admitted by defendant’s counsel that the above rule would be applicable if the plaintiff were seeking damage for injury to his person arising from such an assault, but it is contended that in the present case the damages claimed are not to the person of plaintiff but to his property, and that there is no allegation of proof that the defendant willfully assaulted the plaintiff for the purpose of creating the damage complained of. The rule appears to be that:

“Where the act or omission complained of was not prima facie actibnable, because indifferent in itself, the intent with which it was done becomes material, and requires, as do all substantive matters of fact, a specific allegation thereof; but where the act occasioning damage is itself unlawful, without any other extrinsic circumstances, the intent of the wrongdoer is immaterial, and no allegation thereof is necessary.” 21 PI. & Pr. 918. “The author of a willful tort is responsbile for the direct and immediate consequences thereof, whether or not they may be regarded as natural or probable, or whether they might have been contemplated, foreseen, or expected, or not.” 8 Am. & Eng. Enc. Law (2 ed.) 598.

For example, one who threw a stream of water from a hose upon a team of horses hitched in front of his premises, frightening the horses so that they ran away and collided with another team, was held liable in damages for the injuries resulting from the collision. Forney v. Goldmacher, 75 Mo. 113 ( 42 Am. Rep. 388). And, where the defendant wrongfully struck the plaintiff’s horses attached to a sleigh, causing them to run so as to throw off the load of wood on the sleigh, and break the harness, he was held liable for the labor and trouble of reloading the wood, the delay of getting to market or place of destination, the time lost and expense incurred in making repairs to the harness and sleigh, and the injury done to the horses by creating in them a vicious habit of running away. Oleson v. Brown, 41 Wis. 413. So, also, where a railroad company ran its train of cars over a hose which had been laid across its line of road to extinguish a fire in a building, and it was shown that the building was destroyed by fire as a consequence of a lack of water resulting from the severance of the hose, it was held that, as the act of the corporation was the cause of the destruction of the building, the company was liable. Metallic Compression Casting Co. v. Fitchburg R. Co., 109 Mass. 277 (12 Am. Rep. 689).

2. In the case in hand, the evidence of both parties shows that up to the time of the altercation the plaintiff was in personal charge and control of the horse. He was under no legal obligation or duty to anticipate that defendant would violate the law by assaulting him, or to make provision against possible results of a probable assault any more than he would be required to avoid the same by retreating or otherwise. Steinmetz v. Kelly, 72 Ind. 442 (37 Am. Rep. 170). The whole question then was involved in the issue whether the horse became frightened because of the assault, and succeeded in getting away because plaintiff was prevented thereby from personally controlling him. This was fairly presented to the jury by the instruction given.

Finding no error in the record, the judgment is affirmed. Affirmed.