majority">By the Court, Talcott; J.

The facts in this case to be assumed on this appeal are, that the defendant hired a horse, buggy and harness of the plaintiff, a livery stable keeper at Palmyra,;,to go to Macedón. The defendant *202stopped at an in'1 in Macedón. There the defendant ordered that the horse be put into the barn and fed. This .'was done, and for that purpose the headstall was taken off. When he ordered the horse for the purpose of returning, the person temporarily -acting as the hostler at the inn, put the horse into the buggy, but omitted to put the bits-in the horse’s mouth. The defendant started to drive off without discovering that the bits were not in the horse’s mouth, by reason of which, the horse was unmanageable and fan away, damaging himself, the buggy and harness, to recover which damage to the horse and buggy, this action is brought.

The court charged the jury, that unless the defendant knew, when he got into the-buggy and took the horse in his charge, that the bits were not in the mouth, there was no negligence made out; and that the defendant was not liable for the negligence on the part of the person who harnessed the horse. To these instructions, exceptions were taken.

Some other questions were litigated on the trial, but under the charge the verdict might have been based upon the ground that the defendant was not liable for any negligence on the part of the hostler, unless he knew the bits were out of the mouth. We think this charge was erroneous.

The hirer of a thing is responsible for that degree of diligence which all prudent men use in keeping their own goods of the same kind. (Story on Bailm. § 399.) The hirer is not only liable for his own personal default, but also for that of his servants and persons employed by him. (Id. § 400.)

The hostler, or person who acted as such, at the inn, was not the servant of the livery stable keeper at Palmyra, but was the servant of the innkeeper, and as between the plaintiff and the defendant, was the servant'of the defend*203ant. The cases referred to upon the liability of the hirers of carriages, or horses, for injuries to third persons, where the driver is furnished by the - stable keeper, have no application to this ease. Here, the defendant had the sole charge and control of the equipage, for the time being, and is responsible for the acts of those whom he chooses to employ to take care óf it, whether they be innkeepers or not. It is the duty of the hirer of a horse to supply him with suitable food during the time of the hiring, and any neglect on his part will make him responsible to the owner for the damage sustained thereby. (Id. § 405.)

Could the hirer excuse himself by showing that he had employed some proper person to feed the horse, but that person had neglected his duty ? This would hardly be claimed. Would it make any difference ,if the person so employed were an innkeeper ? There is no principle upon which such a distinction can be made.

The case, of a hirer of a horse which falls sick during a journey, without the fault of the hirer, who employs the services of a professed farrier, who makes a mistake in the treatment, is not analogous. There, the hifer is under no obligation to cure the horse, but only to do all that a prudent man can be required to do, that is, to employ a farrier presumed to have the requisite knowledge and skill, which the hirer himself is not supposed to possess. And in this he acts as the agent of the owner, his own fault or neglect or act not having occasioned the necessity for employing anybody.

But an innkeeper, or, the servant of an innkeeper, is not presumed to possess any peculiar learning or skill not accessible to other persons, which authorizes the hirer of a horse to commit the proper feeding, or harnessing, of the horse to him, without responsibility for his acts or neglects.

We think the instruction that the defendant was not *204responsible for the neglect of the servant of the inn was erroneous, and that the judgment must be reversed and a new trial granted; costs to abide the event.

[Fourth Department, General Term, at Buffalo,February 6, 1871.

Mullin, P. J., and Johnson and Talcott, Justices.]

Citation profile

How this case has been treated — in progress