66 N.J.L. 339 | N.J. | 1901
This was a suit by husband and wife to recover damages for an injury done to the wife, Mary Healey, who, on October 14th, 1898, was walking along the sidewalk on Christie street, a public street .in the city of Newark. While she was in the lawful use of the street a horse of the defendant was being led along the sidewalk by a halter by a servant of the defendant. The horse had no other harness. The plaintiff testified that she came from Ferry street into Christie street, and walked along the sidewalk on Christie street; that on the outer edge of the sidewalk and running parallel with Christie street is a wooden railing separating the sidewalk from the street; that while she was walking along the sidewalk she saw a man leading a horse by a halter coming towards her on the sidewalk; that as the man and horse approached her she attempted to get out of the way of the horse by going a little further out towards the railing, when the horse kicked her. For the personal injuries she' sustained this suit was brought, and resulted in a verdict in favor of the plaintiffs for personal injuries to the wife and for the damages sustained by the husband. There is no controversy as to the manner in which the accident happened.
The plaintiffs neither allege in the declaration nor proved at the trial any mischievous propensity on the part of the defendant’s horse. The contention on the part of the defence- was that in order to allow the plaintiffs to recover damages for the personal injuries, a vicious or mischievous propensity on the part of the animal must be shown and the scienter established. This question was raised first on motion to nonsuit, which was denied and exception taken. The learned judge, in his charge to the jury, dealt with this subject as follows: “It is said by the defendant that the plaintiffs ought to prove to you that the defendant knew that the horse had this vicious propensity — in common language, that the defendant knew that the horse was a kicker. I charge you that that is not the law, and that it is not necessary, in order for the plaintiffs to recover, for them to show that' the defendant corporation knew of this bad propensity, if it
To sustain the contention of the defendant's counsel, reliance is placed on Cox v. Burbridge, 13 C. B. (N. S.) 430. In that case it appeared that the defendant's horse, being on •a highway unattended, kicked the plaintiff, a child who was playing there; there was no evidence to- show how the horse came on the spot, or what induced him to kick the child, or that he was accustomed to kick. It was held that there was no evidence from which a jury would be justified in inferring that the defendant had been guilty of actionable negligence. The familiar doctrine of the common law is that the owner of a domestic animal is not responsible for an injury done by it unless he Has knowledge of the propensity or vice which induces the animal to do the injury, or has been guilty of some actionable negligence. The court, in disposing of the case, dwelt mainly on the fact that there was no evidence of an actionable wrong on the part of the owner of the animal. Chief Justice Earle said: “To entitle the plaintiff to maintain the action it is necessary to show a breach of some legal duty due from the defendant to the plaintiff; and it is enough to say that there is no evidence to support the affirmative of the issue that there was negligence on the part of the defendant for which an action would lie by the plaintiff. The simple fact found is that the horse was on the highway. He may have been there without negligence of the owner; he might have been put there by a stranger, or might have escaped from some enclosed place without the owner’s knowledge. To entitle the plaintiff to recover there must be some
In a later case (Lee v. Riley, 18 C. B. (N. S.) 122), through a defect of fences, which it was the duty of the defendant to repair, his mare strayed in the night-time from his close into an adjoining field, and so into the field, of the plaintiff’s in which was a horse; from some unexplained cause the animals quarreled, ■ and the result was that the plaintiff’s horse received a kick from the defendant’s mare which broke his leg, and he was necessarily killed. It was held that the defendant was responsible for his mare’s trespass, and that the damage was not too remote. In that case there was no proof that the defendant’s animal was vicious. The liability of the defendant was put upon the ground that the animal was trespassing on the plaintiff’s close, and that the foundation of .the cause was negligence on the part of the defendant in neglecting properly to keep up his fences, by means of which his mare strayed from his close and injured the horse. Chief Justice Earle sat in both of these eases and took part in the decision of each. In Ellis v, Loftus Iron Co., L. R., 10 C. P. 10, the defendant’s horse injured the plaintiff’s mare by biting and kicking her through ' the fence separating the plaintiff’s land from the defendant’s. It was held that the defendant was liable in damages, apart from any question of negligence on its part. The ground of that decision is stated in the opinion of Mr. Justice Keating to be this: “The horse, it is found, kicked and bit the mare through the fence. I take it that the meaning of that must be that the horse’s mouth and feet protruded through the fence over the plaintiff’s land, and that would, in my opinion, amount in law to a trespass.”
In Hammack v. White, 11 C. B. (N. S.) 588, the defendant was riding a horse which he had recently bought, and took him out to try him. Erom some unexplained cause the horse became restive, and notwithstanding the defendant’s well-directed efforts to control him, ran upon the pavement and killed a man. It was held that these facts disclosed no evidence of negligence which the judge was warranted in
Mr. Beven, commenting on these cases, used this language: “Although when a horse is in a place where it has a right to be, any disposition to kick that it may suddenly manifest does not import a liability on its owner; when the horse is where it should not be, and kicks, the kicking is not so far remote from what is to be expected from the natural disposition of horses that the injury canno't be said to follow in the natural and obvious sequence from the original wrongful act which allowed the horse to get where an opportunity of
In Barnes v. Chapin, 4 Allen 444, which was an action of tort for the value of a colt kicked and killed by the defendant’s mare, it appeared that the plaintiff was leading his mare in the highway by a bridle, and her sucking colt three weeks old was near her unfastened, and the defendant’s mare, which had been turned loose in the highway, ran up and chased the colt and kicked and killed it. There was no evidence that the defendant’s mare was vicious, and there was a verdict for the plaintiff, and that verdict was sustained by the court. Chief Justice Chapman stated the general doctrine of the common law as to injuries done by domestic animals, that the owner is not liable unless he has been in some fault; but the fault of the defendant which gave rise to this recovery was held to be in permitting his mare to go
Mr. Wood, commenting on the case of Cox v. Burbridge, says: “The doctrine of this case does not commend itself to the courts or profession as being consistent with reason or sound policy. The horse was unlawfully in the highway; the child was lawfully there, and there seems to be no good reason why the owner or keeper of the horse should not be responsible for the injuries inflicted upon the child while the horse, was so unlawfully at large.” Wood Nuis. 190. Judge Redfield, in discussing the case of Cox v. Burbridge, says that that case “has created some discussion in England and provoked some unfriendly criticisms, as it seems to us not altogether without reason. It seems almost incomprehensible that anyone should require proof that the owner of a horse was made aware of its propensity to do damage when running at large in the highway. If the horse was wrongfully in the highway and did damage in consequence to any person or thing rightfully there, the.owner or keeper should be responsible, as it seems to us.” 4 Am. L. Beg. (N. S.) 140, 141.
It may safely be asserted that the decision of that .case was contrary to the great weight of authority -in this country, and it seems to us not sustained on principle or by preceding authority in England. The case of Cox v. Burbridge is, however, so clearly distinguishable from thjs case that if recognized as authority, it would be inapplicable in this instance. In that case it was assumed by the court and made the groundwork of decision that there was no evidence of an actionable wrong on the part of the owner of the animal; that it may have been in the street without any negligence of the owner, or might have been put there by a stranger, or might have escaped from some enclosed place without the owner’s knowledge. In the present case the defendant’s horse was in charge of a servant, for whose acts and negligence the defendant is responsible. The trial court charged the jury that the defendant “would have a right to cross that sidewalk with its horses, going in and out of the stable, to
■ Riding or leading a horse along the sidewalk is a nuisance; for such an unlawful use of the sidewalk, an indictment would lie. It was assumed by the English judges, in their opinions in Hammack v. White, supra, that riding and driving on the sidewalk as a voluntary' act was unlawful, and that the defendant would be liable in damages for killing a man lawfully using the sidewalk, unless he showed that he was carried on the sidewalk by his horse, which was restive and uncontrollable. The cases from the courts of our sister states that have been cited are also to the same effect.
The situation, too, at the time this injury was inflicted is of consequence in this ease. The sidewalk along which the defendant’s servant was leading the horse was fenced off by a wooden railing along the curb, separating the sidewalk from the street, and the plaintiff was endeavoring to get out of the way of the horse by going a little further out towards the railing, when the horse kicked her. There was no testimony offered on the part of the defence, and it may fairly be assumed from the testimony of the plaintiff Mary Healey that if the person leading the horse had looked he might- have seen the perilous position in which she was placed by his. unlawful use of the sidewalk.
We think the instruction of the trial court on this subject was correct.
Another exception was taken to the admission of evidence. It appeared in the evidence that the plaintiff, a married woman, was carrying on business for herself. She testified that she sold notions of all kinds — soaps, brushes, combs,
By the settled law of this state a married woman carrying on separate business is entitled to have her own earnings. Section 4 of the Married Women’s act is explicit on this subject. It enacts “that the wages and earnings of any married woman, acquired or gained by her after the passing of this act, in any employment, occupation or trade in which she is employed, and which she carries on separately from her husband, and all investments of such wages, earnings, money or property, shall be her sole and separate property, as though she-were a single woman.” Gen. Stat., p. 2013. A per
We find no error on the record, and the judgment should be affirmed.