4 Ga. App. 187 | Ga. Ct. App. | 1908
The plaintiff placed his horse in the pasture of the defendants as agistors. The horse was blind, and fell into an uncovered well in the defendants’ pasture and was killed. A suit
We find no error in this judgment. We will first consider the general nature of a contract of agistment, and then inquire whether the liability of the bailee in such a contract of bailment may be limited by the express terms of the special contract, and next, whether the jury were authorized to find that the defendants were not liable, either because the special terms of the contract had been complied with, or because, under the particular circumstances of the case, the plaintiff himself took the risk of the conditions which surrounded his animal and which were the cause of its death.
In the present case the plaintiff sent to the defendants a horse practically blind, to be pastured. It was sent by the plaintiff’s agent and servant. Prior to the sending the plaintiff and one of the defendants had a conversation over the telephone, but this amounted to nothing except an inquiry on the part of the plaintiff as to whether the defendants had a pasture and would take his horse, and a reply to these questions. The defendants had never seen the horse until brought by the agent, and did not know until then that he was blind. The plaintiff had never seen the pasture, in which were an uncovered well about 15 or 20 feet deep, an old canal about 6 feet deep, and several dangerous holes. When, however, the plaintiff’s servant brought the horse and the defendants saw it was blind, they told the plaintiff’s agent that there were more than a dozen, places in the pasture where a blind horse might be killed. In spite of this warning, and perhaps without the defendant’s knowledge, the plaintiff’s agent put the horse in the pasture, and some time thereafter it fell into the well and was killed. The jury was authorized to find that he who carried the horse to the pasture was the plaintiff’s agent, and that a' notice to him was equivalent to notice to the owner. In our view of the case the placing of the horse in this dangerous pasture, after notice had been given of the danger, was, in effect, the creation of a contract by which the agistor limited his liability so as to exclude any casualty which might result from the well, the canal, or the holes in the pasture. As to these the owner himself assumed the risk, and therefore the defendants can not be held liable for an injury which resulted, not from negligence of the agistor in any given particular, but from the dangerous character of the place; of which the plaintiff, through his agent, was fully apprised. The defendants could not be liable for the plaintiff’s servant’s lack of diligence to disclose to the plaintiff the holes in