Animal. Negligence, Of keeper of animal. Practice, Civil, Requests, rulings and instructions, Charge to jury.
Two counts in an action of tort against a man and his wife were based on allegations that the defendants were owners of a horse which, being on land of the plaintiff's father through negligence of the defendants, trampled upon and injured the plaintiff; and two other counts were similar in their allegations, except that the defendants were alleged to be keepers of the horse. At the trial of the action, there was evidence that the horse was used by both defendants in the business of their farm; that many times, on complaint that it was trespassing, one or the other had driven it out of the premises of the father of the plaintiff; that each of them had referred to it, or had raised no question when it was referred to, as "his" or "her" horse; that one or the other had frequently been seen to turn it out hobbled to pasture; and that the defendant wife had promised once to repair damage which it had done and her husband had attended to the repairs. The defendants testified that the horse belonged to a minor son who cared for it, looked after it, and used it in his occupation. Held, that there was evidence of joint ownership or a joint keeping by the defendants. Further evidence at the trial of the action above described was that the defendants permitted the horse to wander about hobbled; that, if startled, a hobbled horse would "flare up" and might do many things owing to its inability to run; that, not having freedom of movement, and, thus, being unable to control itself, it might rear awkwardly, fall over, and be a source of danger to anyone; and that while so hobbled and unlawfully in a field of the plaintiff's father, he became startled and injured the plaintiff. Held, that a finding was warranted that negligence of the defendants caused the plaintiff's injury. Allegations in various counts of the declaration in the action above described were that the defendants negligently allowed "the . . . horse to roam about and unrestrained," and that they "negligently and without right allowed" the horse to "trespass," while hobbled, upon land of the plaintiff's father. Held, that the action was not based on trespass, but rested on negligence. Requests for rulings, at the trial above described, which were dependent on the technicalities of an action of trespass properly were denied. The judge in part instructed the jury at the trial above described as follows: "But where there is no act of God intervening, and where diligence could have insured that the animal would stay upon your own land and not get onto your neighbor's land, then, whether you call it negligence for the animal to be allowed to get away, or whether you say that the liability is incurred without negligence, is of very little consequence. . . . Now if these defendants owned the horse and turned him out hobbled in this way, or permitted him to be turned out hobbled in this way, and in that hobbled condition he trespassed upon the lands of the plaintiff's father and there did damage, the defendants would be liable for such damage as was the natural and probable consequence of the horse being permitted to trespass with the hobbles on; and if a horse so hobbled was naturally a source of danger to any one who might approach him, and what he did was a natural thing to be expected of a horse so hobbled, then the defendants would be liable for the consequences." Held, that the jury could not fairly have understood that the defendants could be found liable merely because the horse was trespassing.
WAIT, J.
The plaintiff, a minor, while walking through his father's cornfield, startled a horse which was wrongfully in the field. The horse had been hobbled by putting a rope around its forelegs so that it could not take a step longer than six inches. It reared, swung around, struck the plaintiff with its fore hooves, and injured him. There was evidence that it was used by both defendants in the business of their farm; that many times, on complaint that it was trespassing, one or the other had driven it out of the father's premises; that each of them had referred to it, or had raised no question when it was referred to, as "his" or "her" horse; that one or the other had frequently been seen to turn it out hobbled to pasture; that Mrs. Ratkiewicz had promised once to see about damage which it had done and her husband had attended to the repairs. There was thus evidence for a jury of joint ownership or a joint keeping by the defendants, although they testified that the horse belonged to a minor son who cared for, looked after it, and used it in his occupation. Maillet v. Mininno, 266 Mass. 86. It was for the jury, not for the judge, to draw the inferences from the testimony, unless, as matter of law, only inferences favorable to the defendants and decisive in their favor were permissible.
There was abundant evidence that the horse was permitted to wander about in its hobbled state. An expert veterinary surgeon testified that, if startled, a hobbled horse would "flare up" and might do many things owing to its inability to run; that, not having freedom of movement, and, thus, unable to control itself, it might rear awkwardly, fall over, and be a source of danger to anyone. This would support a finding of negligence in permitting any horse so shackled to get upon the premises of others. Viciousness of the horse is not involved. Any well-behaved animal might reasonably be expected to act, if hobbled, as this one did. Consequently whoever owns or controls it will be held in law to act with reference to the reasonable probability of harm to others. "The owner of an animal, or the person who in his place . . . has the . . . custody and control of it, is liable for injuries which he negligently suffers it to commit." Lyons v. Merrick, 105 Mass. 71, 76.
Although the word "trespass" is used in the third and fourth counts of the declaration, the action is not based on trespass. It rests in negligence. Rulings dependent on technicalities of the action of trespass have no place here. We see no error in the refusal to direct a verdict for the defendants, or either of them, on any count. There was evidence to be weighed by a jury.
There is nothing in the other exceptions. The judge was not bound to instruct in regard to detached portions of the evidence. Smith v. Import Drug Co. 253 Mass. 368. We have examined the charge as reported in the bill of exceptions, and find that the issues of the case were presented with sufficient fullness and the material rules of law were adequately indicated. The jury could not fairly have understood that the defendants could be found liable merely because the horse was trespassing. Detailed discussion is unnecessary.
Exceptions overruled.