20 Fla. 457 | Fla. | 1884
delivered the opinion of the Court.
The first error assigned cannot be maintained. The specific date of the injury, as charged in the complaint, is of no consequence. The statement of the time of committing the injuries is seldom material; and in a case of this character, it may be proved to have been committed on a day
An action of this character may be maintained against a bailee, upon the contract for bailment, for any neglect or breach of duty. 1 Chitty Pleadings, 16th Ed., 114; Kennaird vs. Jones, 9 Grattan, 183; Ferrier vs. Wood, 9 Ark., 85; Story on Bailment, §§ 2, 3 and notes; 2 Chitty Plead., 16th Ed., 67, 144; Bank of Mobile vs. Huggins, 3 Ala., 206.
The court did not err in overruling the demurrer. An allegation of carelessness and negligence appears in both counts of the declaration. The injury was sufficiently de
The next error assigned is to that part of the charge of the court reading as follows: “ But the plaintiffs say further that if the horse was not in this respect such as they are required to keep for the public, the defendant was warned as to his qualities, and did not act in a way to guard against injury from these. As to this, I instruct you, if the defendant was warned of any bad quality of the horse, it was his duty in the use of him to exercise such additional care and prudence as would be required to guard against mishaps from such bad quality. I do not mean that this would have been required of him unless he took the risk of driving the horse himself. I think if he did take that risk, he was bound to use that sufficient care which was made necessary by the warning.” The evidence in this case, as appears from the record, is conflicting. Blackshear, one of the plaintiffs, testified that the horse was “ gentle enough for ordinary purposes. He had no bad qualities whatever, except that he was a little nervous on being hitched, when you would pull the buggy upon him, and he would not stand hitched while fastened to a buggy. I always told every one who hired him to take him loose from the buggy when they stopped at a place.” “ He was nervous when you hitched him up and left him standing.” John Anderson testified: “I delivered horse, and-1 told Dr. West, Mr. Blackshear and Russ said take horse loose from the bugg}’ when he stopped. He sent me after a halter to tie the horse. I gave Dr. West halter to tie the horse. I told West to take the horse out of the buggy when he stopped.” W. W. Russ, one of the plaintiffs, testified : “ I told Dr. West to be careful when he stopped at place, as he would not stand hitched to a buggy. I told Dr. West horse would not stand hitched, he was spirited,
Hardy Holden testified : “ I was at the stable when Dr. West came for a horse. I told him I had only two or three horses left. Would let him have Henry Jordan, the best horse in the stable, but that he must be careful to unhitch him when lie stopped at a place. He said all right. He sent after a halter.”
The evidence shows the defendant received a rope to tié the horse with; that the rope was fastened about the neck of the horse, and then tied to a tree ; that the horse reared up, ran backwards, kicked and ran away, receiving injuries, and that the horse when so tied was still hitched to the buggy.
On behalf of the defendant, Theodore West, son of the defendant, testified that he was standing in front of the drug stoi’e when Andrews brought the horse and buggy to his father. Defendant asked Andrews if the horse would stand tied, and Andrews said yes. The defendant then told him to bring a rope. That W. W. Russ was not present. Wm. McPherson testified that Andrews told the defendant in answer to a question, that the horse would stand tied ; that the defendant told Andrews to bring him a rope, and a rope was brought. Did not see Russ there. The defendant himself then swore that he told Hardy Holden that he ■wanted a good horse, best, and a gentle horse. He asked him “if the horse ivould stand hitched to the buggy; he said yes. I told him to send me a rope to tie him with. He sent if by Brown Holden, a little boy. I hitched the horse to a tree with the rope furnished me by tying it to a tree and around horse’s neck.”
We cannot see, after an inspection of the evidence, that there was any error in the charge as excepted to. The rule of law is well settled that the hirer must re-deliver the
Another error assigned is in the court’s failure to charge the jury as requested by the defendant’s counsel, that “ to tie a horse that is hitched to a buggy to a tree with a good strong rope is not an act of negligence on the part of one who has hired the horse from a livery stable keeper or keepers, to be driven by a physician in his practice, and when calling to see one of his patients.”
In this case, where there is conflicting evidence, the question of negligence is one of fact, and must be determined by
The next error assigned is in not reducing the rulings upon the instruction cited by defendant’s counsel to writing, and pronouncing the Same as given or refused, to the jury. There is no evidence in the record that the court did not reduce his rulings to writing and pronounce the same to the jury. The bill of exceptions says: “The Judge charged the jury orally, which after adjournment he reduced to writing, which is in the words following, to-wit-:” Embodied in that written charge appears the request of the defendant’s counsel that the court should charge in the language used in the last above assigned error. At the foot of this the Judge certifies under his hand and seal that he re
The ruling of the court appears to be in writing, signed and sealed, and is attached to and made a part of the charge of the court, as embodied in the bill of exceptions. Jones vs. State, 18 Fla., 890. Aside from this fact, no exception seems to have been taken to the oral charge of the Judge, afterwards reduced to writing, or to the refusal, orally, if made, to the request for such instruction by defendant’s counsel. This error, if error there was, seems to have .been cured by the acts of the defendant’s counsel. If he had excepted to the action of the court, the omission could and probably would have been cured. The jury could have been recalled, and the instructions would have been reduced to writing and repeated to them. In the case of Southern Express Co. vs. Van Meter, 17 Fla., 783, this court have-fully determined this question. It says: “We think the rule in a' case of this character is that a party cannot, by his silence in the Circuit Court, waive the failure of the Judge to put his instructions in writing, or to sign and seal them, or. to do other merely formal acts of this character, and after having his chance before the jury, urge upon a motion for a new trial, or here, for the first time, his omission.” Plací the defendant excepted, as it was his right so to do, at the proper time, there was an opportunity for the court to correct the supposed error at once; but he cannot now, after having failed to succeed, avail himself of an objection which might have been easily removed. Coker & Scheffer vs. Hayes, 16 FDla., 370.
The last error assigned is that the court erred in not charging the jury in writing, as the statute prescribes. As before said, the bill of exceptions contains the instructions to the jury in writing, although it says they were given to the jury orally, and subsequently reduced to writing.
The judgment of the court below must he affirmed.