54 Mich. 224 | Mich. | 1884
The defendant was owner of a stallion by which a valuable mare belonging to the plaintiff was served. The plaintiff claims that the mare was fatally injured in the operation through the entry of the rectum, and that this occurred by the negligence of defendant’s groom, and he sues to recover her value.
After proving the injury the plaintiff, to show negligence, put upon the stand a man who testified to having had very long experience as owner and manager of stallions, and asked him whether, under the circumstances, if the service had been properly performed such an injury could have been received. The question was objected to and ruled out because the witness was not a veterinary surgeon. This was error. It was the experience of the. witness that qualified him to express an opiuion upon the question, and not his having taken up a
Evidence was given that immediately after the mare was served, she was in great pain and commenced sweating on her sides and loins, so that the perspiration rolled off of her. A witness who testified to large experience in such cases was asked to state whether he ever before saw a mare in the same condition directly after being served with a horse, but as the witness made no claim to being a-horse-doctor the question was ruled out. The error in this case was the same as in the other.
"We also think that the manner in which the judge submitted the case to the jury was well calculated to lead the jury to suppose that more proof was required of the plaintiff than could be demanded by law. The judge told the jury that, to entitle the plaintiff to recover, he must show— first, that the entry was made of the rectum as claimed by the plaintiff; and second, that it was so made by reason of the negligence or want of care of defendant’s groom. But we think that if the rectum was entered the inference must be, in the absence of any evidence to show other cause, that the groom was wanting in due care.
The judge also submitted to the jury the following special questions:
1. Do you find from the evidence that defendant’s groom omitted any precaution that he might have taken in serving the plaintiff’s mare, and if so, what ?
2. Do you find from the evidence that defendant’s groom did anything in serving plaintiff’s mare that he ought not to have done, and if so, what ?
Neither of these was proper. The effect of submitting them was likely to be to impress the minds of the jury that before they could return a verdict for the plaintiff, they must be able to specify and agree upon the particular act or omission of the groom from which the injury resulted. But this would be error. The jury might have been satisfied of a want of care, deducible from all the circumstances, without being able particularly to describe or define it; and if they
A new trial must be ordered.
