6 Daly 321 | New York Court of Common Pleas | 1875
Action for damages by reason of negligence of a servant of defendant, a horse-shoer, in improperly fastening shoe of plaintiff’s horse, from which negligence, it is alleged, the horse died.
The defendant employed this man, who, with another employee, was in charge of the horse-shoeing shop when plaintiff called. At plaintiff’s request to have the horse’s shoe fastened, one of the men directed the other to do the work, and he proceeded to fasten the shoe. He was defendant’s servant, acting in the course of his employment, certainly, and not on his own account. It is defendant’s peril if his servant do more or less than he instructs him to do. Private instructions or limitations of power or employment of servants do not affect the master’s liability, if the servant be in any way held out as having authority, or so placed as to give that impression to the public. For the time being the two men were alone in the shop, and upon . plaintiff’s request to have his horse’s shoe fastened, one of them, by direction of the other, proceeded to do it. The liability of the master for their acts arises in this case from the circumstances that they were actually servants of defendant; alone in
The jury were authorized by the evidence to find that the negligence of the defendant’s servant produced the injury; plaintiff saw that the man was awkward about it, and it is a fact that he was not a skilled workman, but a laborer. The shoe was fastened Friday or Saturday morning; on Monday afternoon the horse went lame; defendant’s foreman took the shoe off" that night; next morning the hoof was examined, and, a piece of nail found in it. The inevitable conclusion is that it had been driven up in fastening the shoe two or three days before.
The jury was not bound to conclude that plaintiff’s care of the horse caused his loss; plaintiff had the shoe taken off the night of the afternoon he went lame, by one of defendant’s men ; soaked and poulticed the foot; soaked it next morning-; took the horse to defendant’s shop to be examined; had the piece of nail extracted by defendant’s men; took the horse home, doctored him and soaked and poulticed the foot; went on the sixth day to defendant, who sent a veterinary surgeon, who doctored the horse his own way, and under whose prescribed treatment the horse died. Defendant was examined as an expert, and found fault with plaintiff’s treatment, but the only thing suggested by him which plaintiff did not do was to “ apply a little turpentine” to the horse’s foot when the shoe was taken off. What the effect of the turpentine would have been, and how it would have helped the difficulty, he does not, state; nor does it appear that he ever cured a horse injured in
The judgment should »be affirmed, with costs.
Charles P. Daly, Ch. J., and Loew, J., concurred.
Judgment affirmed.