and others" v.
(Circuit Oourt, W: D. Missouri, W. D. October, 1880.)
N;EGLIG;EKCE-CoNTRmUTOHY NEGLIGENCE-QUESTIONS OF FACT.
In an action for damages for personal injuries inflicted by being thrown from a buggy attached to a. runaway horse, alleged to have been frightened by new and unusual machinery being exhibited on the public street, on the question of negligence of defendants-whether the machinery was kept in the proper place, and in, tbe proper manner, and with due care or otherwise; and whether the machinery, or the smoke or steam issuing therefrom, and nothing else, caused the fright of the horse or not; and on the question of contributory negligence on the part of the plainti1f.s-whether the horse was managed with care and prudence, or otherwise; aJ;ld whether the horse was vicious, and con, \0 the or was, in the sense of being disposed to 'runaway,-are questions of fact'for the jury to determine from the evidence.
A livery man· is bound tp. keep !lafe horses, 01' fully disclose the character! of the horse dpy,er at the time of letting him, aud may be respop.sible fpr wrongful acts in, this p a r t i c u l a r . ' ..
Where a 1iu'sband sues for damages for injuries to his wife by being thrown ..from a, huggy:inwhich'he was if the injury resulted from tne wrongful aGt other,cause, plaintiffs havenot.contributed by theIr own,acts or neglect, and the aCCIdent was not caused by the character of MrS6,' the defendants are liable in damages. KREKE:t, D.J.; (clttJ/rgirtg jury.) The evideqce in this case:!lhows tbatthe firm :of.Trumbull,:ReynaldEl.& Allen were on fourth day of July,' 1879, machin,ery, place of business on the side of Walnut, between Fourth al1d Fifth (}it$; that for,: a number of years, in had.,placedamd kept sbanding on the oppo.site side of the street from their stores a number .of machines, :ilf.mollg them separators and a traction-engine; fmIrthl day of July they took out a traction-engine from Kansas City to the fair' grounds for exhibition. When the engine was taken back in the early part of the afternoon of the 4th, it was left on the opposite side of the street from their store, in a gutter or ditch designating the limit of the street; the evidence showing the place and manner'in which it was left. Huntoon and wife, (the plaintiffs,) residents of Wyandotte, Kansas, on the said fourth of Julycame with theirfamily to Kansas City; Mr. Huntoon, wife, and child riding in a buggy, and the two boys in a street car. While going up Main street they saw the traction-engine on Walnut street. After going up Main street, they crossed over to Walnut, passed up Walnut some distance, turned
HUNTOON V. TRUMBULL.
and came back or down Walnut street, ope oUhe boys walkmg; while the other two children were with their father and mother riding in the buggy. They thus proceeded down Walnut street, and somewhere near Fifth or south of Fifth the horse ran away, upset the buggy, and threw out the occupants, and it is claimed Mrs. Huntoon was perma· nently injured by the fall. The first and most important question you are called upon to decide, under the state of facts in evidence, is, was this act of defendants, in placing the separators and the engine in the condition the evidence .shows the same to have been, a wrong· ful and negligent act, and whether in consequence of this claimed wrong and neglect the injury complained of resulted to plaintiff? If the act of the defendants was not wrongful and negligent, the defendants are not liable. But not only must theMt of leaving the ma. chinery as shown by· the evidence be wrongful and negligent, but such wrong and neglect must have been the cause of the injury com. pll;l.ined of. If the injury to plaintiff was not cauE\ed by the wrongful a.nd negligent acts of defendants, plaintiff cannot recovell! in this action. In order to arrivl3at a proper con.clusionas to whether the lea,ving of the separators .a.ndtheengine aathey were ,left,. were wrongful and negligent acts on the part· of the defendants,you will, in the first place, consider ·the machinery so left, its appeard.Jle,as'well as the necessity" if any, of exhibiting such. machinery in the. ustial course of trade as themea,ns of examination. Notevery Jlew invention in machinery is, prohibited from being shown:in pl'oper plfJ,ces, in proper. dondition;iand at.proper times,because either men or animals may. become frightened at the unusua,l sight. The 'question. for y()U ItO. determine is,dwere the separators a.nd: in.a. .proper place. where they we1!ekept. and was the' ·kept a.s prudence and J:egard fOll'safety ofIife and property would dictate -iUobe kept? In :order to determine this, yon may·tlike iiritdrcOfi.1. sideratioll the. m1l,nner and; place in which machinery. of the f6Xr:ed.tobad been kept in the past......thefactithat IJ.p fal' as shOWIl,prohibita,8u:chtkeeping in ip. . twhere,'th e' same .lrept;not that such' waD.t justifies,: a,ny wl'ong&.l or .negIigeht· keeping, but fatl, lreA:ting ilpOD thQ :generaldju.estionof: prop4l1" care., , ": , d I. Bepltl'atol's ha.d:; be-cotne ,amtiblhs use, and properly kept cannot be complained ofbe<ll&Use,s:ihiorse may :become'frightened,1>nac0ountoHhem.. . . . . ' ,:'., i I:, If,, upon full. consideration of; ,eVidence in this the.'Conclusion thad·1D.owrongful action
" 'FE:DERAL nEPORTEn.
mitted-15y' 'defendants 'ili'i keeping1the separa.tor a.nd engine in the plaaewhete the same were'kept,'atld in the manner in which they were kept; as shown by the evidence, you should find for the defendants. But in case you shall not find thisi8sue for the defendants, but find that they committed a wrong, and are guilty of neglect in having kept the machinery in the place and in the manner in which the same were kept, then you should determine whether the wrongful and negligent act of the defendants' caused the injury by the plaintiff complained of. All the testimony bearing on this question should be examined by you, an.d in so doing you should carefully consider as to whether a horse is likely to cbecome frightened at objects such as the machines described bythe:teatimony. You should be satisfied' from the testimony that the horse became frightened at the machines, smoke or steam issuing from the engine, if any, and at nothing'else, and thafsuch fright caused the running away. You should also be satisfied from .the evidence that the horse was managed with ordinary. care and prudence; that the individual· :managing him had. not deprived himself by his ,own 'acts from a proper management of the horse, ' 'And here Y01'1 may take into consideration, in connection of the testimony, the facttha.t four persons were in the buggy at the time the acCident occ'l1rred. Regarding the charaoter of ,the horse, you areinstructed,tbat if you are satisfied from ,'the evidence that he was: dangerous in the 'sense of being 'disposed to away, that fact must be considered with the rest· of the testimony in arriving at the cause of the runf\way. ,: 'The kriowledge regardingtbe disposition oUl1ehorseby Mr; Hdntooh is the'knowle,dge ofthewife. If the ,pla.intiiff Huntoon or his wife knew :tibthingof tlie 'vicious cbatacter of the horse, and yet ydu: ;'11'8 satisfied fr6m the testimony that-the horse was vicious, andtbl!.t, being,so, cauee<lor tributed to the runaway and consequent injury, you should find for the defendants. The defendants oannot' be charged with theconsequences of the wrongful ,act in allowing' an. unsa.fe horse to be hitched up,fo,l' that would be making them liable for the wrongful act of another. There may be a,responsibility in such case, but that responsibility is not upon the defendants. A livery man is bound iokeep safe horses, or fully disclosetheoharacter of the horse to the driver at the time of letting him, and hema.Y'be resp6nsiblefor wrongful acts in this partic.ular., , As already stated, you a.re tOdonsider the, character of the horse with the" of the testimony; in .order ,cause which contributed to tberunawayand
DUNMEAD V. A,HERICAN M;rNING & SMELTING 00.
accident. Thl'l suit is for injury to the, wife. The loss of service of the wife, the uu;rlling and expense of nursing, and the doctors' bills, are subjects of anothe:r suit brought by the husbat,ld on his own account, and nothing to do with damages which to the wife which may have thus arisen. It is ,the permanent is in controversy. If such has resulted from the wrongful act of the defendants, and from no other cause,and the plaintiffs, have not contributed by their own acts or neglect, or caused by the character of the horse, you are to find for the plaintiff, and estimate her damages, if any.
DUNMEAD '11. AMERIO.AN .MINING
(Circuit Oourt,]). qolorado. J'uly 22,1882.)
In an action for damages for personal injuries caused by the negligen:t acts of a plaintiff must 1lver that he himself exercised due Cale , .' ,and caution at the time of the accident, and that he was not ,and no means of knowledge of character of the person Wh6 was employed 'with him, or of his capacity'an'd fitneSs for the work. ", -'f
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