Williams v. Inhabitants of Leyden

119 Mass. 237 | Mass. | 1876

Morton, J.

The only question presented by this bill of exceptions is whether the presiding judge properly refused to give the instruction requested by the defendant.

There was evidence tending to show that, at the time of the accident, the plaintiffs were driving in a carryall; that the horse driven by them “ was one of a span of team horses, and had been accustomed to draw on the nigh side in double harness, and that he had never before been driven in the same carryall, though he had been driven in single harness; ” and the defendant asked the court to instruct the jury that “ if the horse was most usually driven in double harness and on the nigh side, and, from the habit of taking the nigh rut, turned to the left and cramped the wheel and began to back, and the plaintiffs jumped out instantly upon the cramping of the wheel, the plaintiffs cannot recover for any injury sustained from the jumping out.” The court declined to give the instruction except with this qualification, “ unless the act was done under a reasonable apprehension that the carriage would go over the bank.” The instruction requested is capable of a double meaning. It may be construed as asking the court to direct a verdict for the defendant upon the ground that the injury to the plaintiffs was caused by their jumping out, and not by the defect of the road, in which aspect the qualification added by the court was a correct statement of the law. Sears v. Dennis, 105 Mass. 310. Or it may be construed as asking the court to direct a verdict upon the ground that the injury was caused by a vicious habit of the horse; and the town now contends that upon this ground it was entitled to the instruction without the qualification. But it was for the jury, and not for the court, to determine whether the horse had any vicious habit or trick which contributed to the injury. It appears by the bill of exceptions that the jury were properly instructed as to what the plaintiffs must prove as to the character and fitness of the horse for travelling on the highway at the time of the accident. Upon this question, the facts, so far as they were proved, that the horse was most usually driven in double harness, on the nigh side, and had the habit of taking the nigh rut, were properly submitted to them ; but the court could not rule, as matter of law. that these facts showed a vicious habit of the horse which rendered him unfit to be driven in single harness. We are therefore of opinion that the instruction requested was properly refused. Exceptions overruled.