GAYNOR, J.:
To hit the horses with a whip to stir them up was not negligence. But the learned trial Judge sent the case to the jury to find whether it was negligence to hit the horse with the horsewhip while he was turning; because if he kicked out in that position he would kick toward the line. Now whether it was negligence depends on whether in due care and foresight it was to be anticipated that a horse might kick out behind when given a severe cut of a horsewhip. A horse that will do it is an exception, and the rule of due care does not ordinarily require us to regulate our conduct on exceptions. But that is not always so if the exception is likely to occur, as proved by experience, and should therefore be anticipated. All sorts of new horses were constantly coming to the defendant's mart for sale, and out of so many, ever changing, it was to be expected that there would be a vicious or kicking horse every now and then. Cutting the horse with the whip while he was crosswise in the lane, with his heels so close to the bidders, could be found to be negligence in fact.
The judgment should be affirmed.
GAYNOR, J.:
Judgment and order unanimously affirmed, with costs.