| Wis. | Apr 11, 1893
The contract between the parties was one of bailment, the defendant ice company being the bailee for hire of plaintiff’s horses. There was but one express stipulation in the contract, which was that the horses, should be driven by Clifford. This stipulation was performed by the ice company. In all other respects the conditions and obligations of the contract were those, and those only, which the law implies. One of these is that a bailee for hire is only liable for the consequences of a want of ordinary care of the property bailed. If such property be injured or lost while in his possession, without negligence or fault on his part, the loss falls upon the owner,, not the bailee. All this is elementary in the law of bailment.
It is maintained that the ice company was negligent in three particulars, which negligence caused or contributed to the loss of the horses. These are: (1) It failed to indicate the location of the thin ice by a fence, as required by sec. 4-395, S. & B. Ann. Stats.; (2) it failed to notify Clifford of the location of the thin ice; and (3) it failed to have ropes and appliances at the place of the accident to be used in getting the horses out of the water before they drowned. The testimony has been carefully examined, and we think it demonstrates that, had all these precautions been taken, they would not have saved the horses.
1. They were uncontrollable, were rearing and plunging, and getting away from the place where they became frightened as rapidly as they could. The fence of the statute (which is a single fence board nailed on two by four inch posts, three and one-half feet from the surface upon which the posts stand) would have been but gossamer before those powerful horses, frantic with fright, upon whom two strong mei\could make no impression. Besides, it is very doubtful whether the statute has any application to this case, inasmuch as the employees of the ice company
2..Exact knowledge by (Clifford of the location of the thin ice is not a possible factor in the loss of the horses, for, had' he been fully advised where the thin ice commenced, he was powerless to prevent the horses going upon it. He went into the water with them, and was rescued. Were he suing the plaintiff for negligence, we would have-a case where the fact that he had not such knowledge might be material, but we do not regard it material here.
3. We are aware of no rule of law which required the ice company to have, at the place and time of the accident, ropes and appliances suitable for use in hauling the horses out of the water. Moreover, had such ropes and appliances been there at the time, the proof is quite conclusive that they would have been of no avail. The horses fell into deep water and went under the ice, and were undoubtedly dead when the bystanders had succeeded in rescuing Clifford, who came near being drowned.
It is perfectly obvious that the horses would not have been drowned had they not become frightened and uncontrollable. Eor such fright no blame attaches to the ice company. Had Clifford been able to keep the horses under control, he would not have been required to go upon or dangerously near the thin ice, for the scraping he was sent to do, and which the horses were hired to do, was at a point safely distant from the thin ice, and, as we understand the testimony, the distance therefrom would have constantly increased as the work progressed. Upon a careful examination of the case we are unable to find any testimony which would warrant a finding that the ice company
By the Court. — The judgment of the circuit court is affirmed.