169 A. 270 | Conn. | 1933
The plaintiff brought this action to recover damages for the death of a horse owned by her, alleging that it died as a result of lead poisoning caused by feed bought from the defendant. No substantial change can be made in the trial court's finding. It does, however, contain a number of paragraphs which state testimony offered at the trial and which should not have been included. Beach v. First National Bank,
In addition to the horse which died, three horses upon the farm ate this feed and all became sick, one dying; the only other food eaten by the horses at this time was grass in a pasture into which they were turned and hay fed in the barn; but cows which were in the same pasture and ate the same hay were not poisoned; and while there was evidence that the cows might not have grazed at the same places in the pasture as the horses, again the theory that the sickness *512 of the horses was due to mouldy pasturage is met by the evidence that such a situation does not occur in this part of the country. The trial court could reasonably conclude that the poisoning came from the feed bought of the defendant.
While the place in which the feed was kept upon the farm and the conditions of life there would afford some opportunity to a person who desired to poison the horses to place poison in the feed after it was received, the trial court might reasonably conclude that the more reasonable explanation was that the lead was in the feed when it was bought. Without reviewing the facts in evidence further, we briefly state our conclusion that the decision of the trial court in favor of the plaintiff finds adequate support in the subordinate facts found and the evidence. In a civil case a plaintiff is not bound to demonstrate his right to recover, or even to prove it beyond a reasonable doubt. It is sufficient if the evidence produces in the mind of the trier a reasonable belief of the probability of the existence of the material facts. Johnson v. Connecticut Co.,
The feed was bought for use at the regular feeding times for the horses after its receipt. Its use began the same afternoon it was delivered, was continued the next day, and on the morning of the second day after its receipt the horses became sick. There was no such delay in the use of the feed or such an opportunity afforded for it to become contaminated after its receipt as to make inapplicable the principle of an implied warranty that it was wholesome and fit for use. General Statutes, § 4635; Burkhardt v. Armour Co.,
The trial court included in the judgment an item of $30, which it found to be the reasonable value of the *513
services of the veterinarian who attended the horse. There is no evidence that the veterinarian made any charge to the plaintiff for the services or as to their value. In this situation the allowance of this item was improper. Jackiewicz v. United Illuminating Co.,
There is no error.
In this opinion the other judges concurred.