120 Iowa 59 | Iowa | 1903
On the 21st day of March, 1900, Long & Oamp, who are merchants engaged in business at Fairfield, hired a livery team and light wagon of .plaintiff, which their employe, Roy Fry, drove to Glasgow, a distance of' about twelve miles. The object of the trip was to nail up advertising boards on the way and at that place. Incidentally a young lady, who has since become Fry’s wife, rode with him. They left Fairfield within an hour from 12:15 o’clock p. m., and returned between 5:80 and 6:45 o’clock the same evening. One of the horses died before midnight, and the evidence tended to show that the other could not be used for several weeks, and was of much less value than before the drive. On the part of plaintiff the evidence introduced tended to show that the horses had perspired freely, but that the sweat had dried on them when they came in; that the one which died bore whip marks on its rump; that though the roads were bad the trip was made in about four and one-half hours, and that the horses appeared to have been exhausted by overdriv-ing. On the other hand, defendant’s evidence tended to show that the team was not urged or whipped, that the roads were good save in low places, and that the journey was not made in less than six and one-half hours. The court in the fourth paragraph of the charge instructed the jury that if the death of one horse or the injury to the other was caused by the negligence of Fry, damages should be allowed.
Appellant especially complains of the fifth paragraph, which reads: “ But if plaintiff has failed to prove by the greater weight of the evidence both of said alleged facts,
II. The plaintiff of necessity relied largely on proof of the condition of the team when taken and when returned, with the inferences reasonably to be drawn therefrom. He
The horses were shown to have been heaithy, five and nine years old, accustomed to going long distances, and to have been returned, after a few hours’ drive, in a dying condition. From these circumstances, and thé unusual result, the jury might well have inferred that they were the dumb victims of such cruelty or indifference on the part of their driver as amounted to negligence. If their changed condition was not such as might reasonably have been caused by a drive of that distance in a prudent manner, and was such as would ordinarily have resulted from overdriving or other misuse, we see no reason for not considering this fact as tending to establish negligence on the part of the person handling them.
III. Fry testified, in substance, that he took no notice of the horses. Plaintiff requested the court to instruct that: “It is the duty of the defendants’ employe in driv-3' ‘ ing the plaintiff’s team to exercise such care and watchfulness for them and their condition as a man of ordinary prudence would exercise while driving them, and if such employe failed to exercise such watchful care over the horses, and in fact did not notice their condition, and that they were becoming exhausted, when he might have observed that fact by the exercise of such care, and continued to drive them until they were exhausted, such lack of oversight and watchfulness was negligent, and defendants are .responsible for it, and the injury shown by the evidence to have resulted therefrom.” This instruction ought to have been given. ‘ The distance driven was twenty-four or twenty-five miles, and the jury might have found from the evidence that the employe failed to exercise proper care in observing the team and how they were enduring the drive.