64 Mo. App. 242 | Mo. Ct. App. | 1895
The plaintiff, accompanied by his wife, was driving in a phaeton on Lindell Boule
The petition states “that, before and at the time of the taking the said horse out upon the public streets and boulevard of said city as aforesaid, both the defendant and his said servant and employee well knew the the wild, vicious, dangerous and unmanageable, disposition of said horse.” The defendant claims that there is no substantial proof that the horse was wild, vicious, dangerous and unmanageable, or that the defendant knew these facts, and, hence, that his demurrer to the evidence should have been sustained. There was no substantial evidence that the horse was wild and vicious ; but there was ample evidence that he was dangerous and unmanageable, and that the defendant knew this. The plaintiff’s evidence tended to show that a few days before this accident a hostler of defendant, who had many years experience in driving horses, took the horse out for exercise; that the horse broke away from him; and that the defendant, who witnessed this fact, remarked to his hostler that he thought “the horse would break his neck the way he was running.” The foreman was also present on this occasion, and we may add that, owing to his position in defendant’s
Complaint is made of the action of the court in permitting the plaintiff, against the defendant’s objection, to show what the reputation of the horse was in the stable among those who drove it. The objection was placed upon the specific ground that the reputation in the stable had nothing to do with his reputation on the road, and not on the ground that evidence of reputation was inadmissible. The court seems to have overruled the objection on the ground that, while evidence of reputation was inadmissible to show the character of the horse, it was admissible to show imputable notice to the defendant. That ruling is in conformity with the adjudications in this state. Bennoist v. Darby, 12 Mo. 196, loc. cit. 206.
The court of its own motion instructed the jury'as follows:
“The burden of proof is on the plaintiff to satisfy you by a preponderance of the evidence:
“1. That the horse in question was of a wild, vicious, unmanageable and dangerous disposition, and likely to run away when driven in the streets.
“2. That the disposition of the horse to be wild, vicious, unmanageable and dangerous, and likely to run away when driven in the streets (if such was the disposition of the horse), was known to the defendant, or to the defendant’s foreman and employees who had charge, care and management, of said horse at or before the time the plaintiff was injured.
“3. That the witness* Tufford, who drove the horse at the time of the occurrence in question, was then in the execution of the defendant’s business, or*247 that the said Tufford was driving the horse by the defendant’s order or direction at the time.
“By mentioning the ‘burden of proof’ and the ‘preponderance of evidence,’ the court means merely to briefly express the rule of law, which is that unless the evidence before you, in regard to the facts necessary (under these instructions) to a verdict in favor of plaintiff, appears in your judgment more credible than the contrary evidence regarding said facts, or than the evidence of the facts mentioned in these instructions as constituting a defense to plaintiff’s said claim, then your verdict should be for the defendant.”
Of these instructions the defendant certainly can not complain, since the court by using the word “and!” as italicized above, instead of using the word “or” put a greater burden upon the plaintiff than his pleadings and evidence required.
The instructions given for defendant were more favorable to him than the evidence warranted. There was no evidence in the case that the horse on the occasion in question became frightened by passing bicycles, and yet that fact was submitted to the jury as tending to exonerate the defendant. It is true there was evidence that the foreman had stated to several witnesses that passing bicycles had frightened the horse. This evidence the defendant adduced for the purpose of impeaching the foreman’s veracity. But impeaching evidence is not evidence of the fact touching which the witness is sought to be impeached. It is only the admission of parties which is evidence of the facts admitted.
We find no error in the record, and hence affirm the judgment.