49 N.J.L. 682 | N.J. | 1887
Lead Opinion
The defendant was the keeper of a livery stable at which the plaintiff's horse boarded. The horse having died while in the defendant’s charge, the plaintiff brought this suit for damages, insisting that death resulted from the improper conduct of the stableman. He obtained a judgment which the defendant has removed to this court by writ of error.
The first ground relied on for reversal is that the judge at the trial refused to non-suit the plaintiff or direct a verdict for the defendant, for want of sufficient evidence to sustain the action.
The testimony on behalf of the plaintiff was, first, that of the stableman, that on the morning of September 9th, he had given the horse three-quarters of a loaf of dry, stale, rye bread, that at noon the horse refused his feed and hung down his head, and the stableman thought he had colic; secondly, that of the plaintiff himself, that about seven o’clock in the evening “ the horse’s entrails and stomach moved in terrible pain, he was twice as large as natural, and seemed likely to tumble down every minute;” thirdly, that of a veterinary surg'eon, that bread is not proper food for a horse, and if old and dry will be positively injurious, will produce colic, fermenta
This testimony warranted the submission of the case to the jury, and there is no error in this regard.
The other ground for reversal is that the judge misdirected the jury, in charging as follows: “ It was the duty of the defendant, when this horse became sick, to see to it that proper treatment was furnished, or at least to give to the owner notice of the condition, immediate notice, that he might provide for the treatment of the animal. If there was a failure in this, then on legal ground there is liability.” The defendant insists that “immediate notice” was not legally requisite, but only notice within a -reasonable time.
It may be conceded that of itself the word “ immediate ” is stronger than the expression “ within a reasonable time,” (Cockburn, C. J., in Queen v. Justices of Berkshire, 4 Q. B. Div. 469), and yet a multitude of emergencies might be suggested in which an. act, to be done within a reasonable time, must be done immediately. One of these was that dealt with by the judge at the trial. He was speaking of the defendant’s duty to notify the plaintiff, not as an absolute obligation, but as alternative to his duty of furnishing proper treatment fbr the sick horse. This latter duty the defendant had assumed when he took charge of the animal, and it was not laying down too strict a rule to say that he could not be discharged from it without notifying the owner. If for any cause not within the defendant’s control the owner could not be notified, then the defendant’s primary duty remained to furnish to the horse proper treatment, i. e., such as reasonable care and skill would dictate. But a reference to subsequent parts of the charge makes it quite clear that the judge could not have been understood by the jury as exacting more than reasonable diligence from the defendant. The sentences following that already quoted are: “ The stable-keeper might not be willing to determine for himself who should be the veterinary surgeon
These directions put the duty of the defendant upon the legal footing.
We find no error, and the judgment must be affirmed.
Dissenting Opinion
(dissenting). I think the judgment in this case should be reversed, because the evidence against the loss of the animal being attributed to improper treatment or neglect on the part of Hexamer is overwhelming in character. All I can discover in the testimony to show that the horse died of colic is the statement of the hostler, who said, “ I think he had the colic.” Absolutely, there is nothing besides to sustain the theory. The veterinary surgeon, called in by the owner, was examined on the part of the defendant at the trial, and negatives very emphatically the assertion of death having resulted from that cause. Nor does the expert produced by the plaintiff sustain the allegation in this respect. My opinion is that the proof here is of the weakest kind, and should form no basis of recovery.
Nor does the charge of negligence rest on any better ground. From the testimony of the hostler it appears that the animal was given the usual care and attention in the stable on returning there after being driven for the last time. It is evident also that as soon as symptoms of ailing became visible the foreman of the establishment was notified, and the animal watched specially, and examined by the son of Hexamer, who had taken instructions in the veterinary art. When the horse
The judgment should be reversed.