¶1The opinion of the court was delivered by
¶2The averments in the count upon which the verdict and judgment were rendered were in substance, that upon the day named the plaintiff was lawfully riding in his wagon over and upon a certain highway in Burlington, and that the defendant, being the owner of a certain horse and wagon, then and there being under the control and management of his servant, that said horse was by said servant left so carelessly, negligently, and insecurely tied and hitched and unattended, that, in consequence thereof, he broke away with said wagon and ran violently into and struck with much force and violence the wagon in which the plaintiff was riding; that without fault or negligence upon his part he was thrown out and upon the ground and injured in the manner therein described.
¶3The question presented by the motion in arrest is, whether a cause of action is stated in that count. It is averred that ■ while the plaintiff was in the exercise of a lawful right, without fault or negligence upon his part, he received the injuries described, in consequence of the negligence of the defendant in the control and management of his horse. No further averments were required to constitute a cause of action, and the motion was properly overruled.
¶4The counsel for the defendant have assumed that the right of recovery is dependent upon proof that the defendant’s horse had a propensity to break his fastenings and run, and that that propensity was known to the defendant. No such issues were made by the pleadings or proofs.
¶5The plaintiff’s right is not based upon the duty of the defendant to control an animal known by him to possess such *593propensities, but upon his duty to so restrain an animal not known by him, to have any such vices, that he should be reasonably secure from injury resulting from his negligence.
¶6He simply invokes the application of the maxim: Sic utere tuo ut alienum non laedas. The previous character of the horse was only material as bearing upon the question of negligence. As was said by the presiding judge, that might be considered as negligence in the fastening or leaving unattended one horse, that would not be so considered in another. And so it was proper for the court to instruct the jury that they might consider the character of the horse as shown, in passing upon the question of negligence.
¶7The court rightly instructed the jury as to the care and prudence that should have been observed in the hitching and management of the horse, and that if such care and prudence were not exercised, and the horse ran in consequence of that neglect, and came into collision with the plaintiff, and the injury he sustained was the result of that negligence, he had a right to recover.
¶8Assuming that the tenth request was so made and left by counsel that an exception would lie to the refusal of the court to notice it (which is not decided), the charge upon the subject-matter of the request was legal in character and as full as he was required to make it. There is no occasion to criticise or remark upon the numerous cases cited and relied upon by the learned counsel for the defendant, any further than to observe that in our judgment they can have no application to this case as it is shown by the record.
¶9The judgment is affirmed.