In an action for injuries to the plaintiff's horse by negligent driving the burden of proof is not cast upon the defendant by evidence that the horse was delivered to the defendant uninjured and remained in his possession until returned to the plaintiffs injured. The exclusion of evidence which might properly be rejected for remoteness is not open to exception.
CARPENTER, J.
If evidence tending to show that Parker had committed crimes, and that the defendant knew of their commission, might have been received without legal error, it was so remote that no exception lies for its exclusion. Cook v. New Durham, 64 N.H. 419.
The ruling that the burden of proof remained on the plaintiffs was correct. Proof that the horse was uninjured when at Rochester and was in the possession and under the control of the defendant until he returned it in an injured condition to the plaintiffs, was merely evidence to be weighed upon the question whether the defendant negligently caused the injury. Eastman v. Gould, 63 N.H. 89.
If the plaintiffs are entitled to payment for the defendant's use of the horse in driving from Rochester to Strafford, they cannot recover it in this form of action.
Exceptions overruled.
CLARK, J. did not sit: the others concurred.