Sullivan v. City of Anderson
62 S.E. 862
S.C.
1908
Check Treatment

The opinion of the Court was delivered by

Mr. Justice Woods.

The plaintiff brought this action under section 2023 of Civil Code, to recover one hundred and fifty dollars damages for injuries inflicted on a horse, due to a fall, caused by the feet of the horse being caught in a bridge in one of the streets of the city of Anderson. The Circuit Judge instructed .the jury if the plaintiff was entitled to recover at all, the verdict should be for depreciation in value of the horse, due to the accident, and the expense for keeрing 'him for a reasonable time thereafter, including the cost of feed, care and medicine. The jury rendered a verdict for ninety-nine dollars and fifty cents.

These questions are involved in the appeal: Was there any еvidence that the horse was injured through a defect in the bridge, due to the neglect ‍​​​​‌​‌‌‌​‌​‌‌‌‌​‌​​​‌​‌‌​​​​​‌​‌‌​​​‌​‌​‌​​​​‌​‍or mismanagement of the рublic authorities of the city of Anderson? Did the evidence admit of no- other inference than that the acсident and *480 injury were due either solely to the negligence of the driver in charge of the horse, or that the negligence of the driver contributed to the injury as a proximate cause? Was there any evidence that the lоad on the wagon exceeded the ordinary weight? 'Could the expense of care and treatment of the injured horse for a reasonable time after the injury be taken into the estimate of damages ?

1 There was еvidence on the part of the plaintiff that the bridge was in bad condition before the accident; that therе was a hole in it, and the timbers were unsound. As the witness, Geer, testified these ‍​​​​‌​‌‌‌​‌​‌‌‌‌​‌​​​‌​‌‌​​​​​‌​‌‌​​​‌​‌​‌​​​​‌​‍'defects were apparent to him, thеre was some evidence from which the jury could conclude it was negligence for the municipal authoritiеs not to observe the defects and make the requisite repairs.

2 The evidence relied on to show negligence of the driver was very far from conclusive. It is true, when the plank gave way, causing the horse to fall, he hаd pulled the home to one side of the bridge to avoid a hole on the other side; but this was a reasonable precaution, furnishing no evidence of negligence. There was nothing to show excessive speed or any other act proving conclusively a lack of due care and contributing to the fall and injury of the horse. As the driver testified he had been out delivering groceries to the customers of the plaintiff, and was returning after such dеlivery, when the accident happened, this was evidence- from which the jury might infer that the load on the wagon had been discharged, or at least that the wagon did not contain a load of more than ordinary weight.

3 The chаrge of the Circuit Judge as to the right of recovery for expenses reasonably incurred in the effort to curе the horse was in accord with reason and authority. ‍​​​​‌​‌‌‌​‌​‌‌‌‌​‌​​​‌​‌‌​​​​​‌​‌‌​​​‌​‌​‌​​​​‌​‍The rule is well established that it is the duty of the owner of property, injured by the negligence of another, to use all reasonable effort to minimize the damage. Willis v. Tel. Co., 69 S. C., 539, 48 S. E., 538; *481 Jones v. Tel. Co., 75 S. C., 213, 55 S. E., 218. If such effort is successful, the wrongdoer receives the benefit of it, and it is but just that he should bear the expense. He cannot impose the expense upon the owner, merely because the effort to save him from loss happened to be unsuccessful. It is, of course, a condition of the allowance of expense incurred in the effort to minimize the damages, by restoring the property or otherwise, that it should be undertaken with a reasonаble prospect of success, and that it should be prudently and economically incurred. The following authorities hold the wrongdoer liable for such expenses, reasonably incurred: Watson v. Proprietors of Lisbon Bridge (Me.), 31 Am. Dec., 49; Sullivan Co. v. Arnett (Ind.), 19 N. E., 299; Gulf C. & S. F. Ry. Co. v. Keith (Tex.), 11 S. W., 1117; Atwood v. Boston F. & T. Co., 185 Mass., 557, 71 N. E., 72 ; Ellis v. Hilton, 78 Mich., 150, 16 Am. St., 438, 6 L. R. A., 454; St. Louis, I. M. & S. Ry. Co. v. Biggs, 6 S. W., 724; So. Ry. Co. v. Gilmer (Ala.), 39 So., 265; Telfair Co. v. Webb (Ga.), 47 S. E., 218, 13 Cyc., 150.

Though the facts were different, the ‍​​​​‌​‌‌‌​‌​‌‌‌‌​‌​​​‌​‌‌​​​​​‌​‌‌​​​‌​‌​‌​​​​‌​‍sаme principle was involved in Strange v. R. R., 77 S. C., 182, 57 S. E., 724. There the action was for delay in the delivery of a traveling salesman’s samрle trunk, and it was 'held that measure of damages for the delay in carriage was the expense and detriment to the special business, with reference to which the carriage was undertaken, fairly attributable to the delay, including expenses and loss of time reasonably incurred ‍​​​​‌​‌‌‌​‌​‌‌‌‌​‌​​​‌​‌‌​​​​​‌​‌‌​​​‌​‌​‌​​​​‌​‍in the effort to find the delayed property.

The general rule is that the owner of a 'horse or other animal injured by the negligence of another is entitled to reсover the difference between the market value of the animal immediately before the injury and its market value immediately after the injury. But where, as in this case, by the care and treatment of the owner, there has beеn a partial restoration, the measure of damages is the difference in the market value of the animal immediately before the *482 injury and what would be its market value at the same time, in its condition of partial restorаtion, together with the reasonable expenses of treatment and care. We express no opinion as to whether loss of service should be included, as that item was not embraced in the charge of the Circuit Judge. The market value of the animal in its condition of partial restoration is referred back to the time of the injury, because neither the owner of the property' nor the person who inflicts the injury can be required to take the risk of fluctuations in the market after the liability was incurred.

There is difference of judicial opinion as tо whether the limitation laid down in some of the cases, that the aggregate of damages may not exceed the total value of the animal, is sound. As that point is not involved here, we shall not anticipate it.

The judgment of this Court is that the judgment of the Circuit Court be affirmed.