Lynch v. Richardson , 163 Mass. 160 ( 1895 )

Knowlton, J.

The defendant was a keeper of a livery stable, and the plaintiff’s husband hired of him a horse and carriage for use by the plaintiff and other members of his family. The horse furnished under the contract was advanced in years, and there was evidence from which the jury might have found that it had long had a habit of viciously kicking and trying to run away when started for home, after having been kept out for a considerable time. There was also evidence tending to show that the plaintiff and her driver were free from fault, and in the exercise of due care. It was the duty of the defendant to furnish a horse that had no such vicious habit, and if he knew of the existence of the habit, or if, by the exercise of reasonable care to ascertain whether the horse was suitable for the use of hirers, he ought to have known that it was dangerous, he is liable for such injuries as resulted from his wrongful conduct. Horne v. Meakin, 115 Mass. 326. Copeland v. Draper, 157 Mass. 558.

A verdict was ordered for the defendant solely on the ground that there was no evidence that he knew of the viciousness of the horse. There was no direct evidence of such knowledge, but we think there was evidence from which the jury might well have inferred that he knew the facts. ■ The evidence would have warranted the jury in believing that the habit was of such a kind as to be frequently manifested. It was the duty of the defendant to try to inform himself in regard to the habits of horses kept in bis stable for use in his business. It does not require a very long acquaintance with a horse to enable an ordinary livery stable keeper to form a correct opinion of its qualities. Usually he tries to ascertain as much as possible about it before becoming its owner. In the present case the evidence indicates that different persons who never owned this horse knew of its viciousness before the defendant bought it. It does not very definitely appear how long the defendant had it before the accident, but there is evidence tending to show that it was between one and two years. Callaghan testified “ that he had known the horse about three or four years; that it was owned by one Carney of Waltham, and by him sold to one McAuliffe, and by McAuliffe sold to the defendant; that he knew the horse while owned by Carney about a year and a half; and that McAuliffe owned it about six months, to the best of his knowledge and belief, before he sold it to the defendant.” This evidence well warranted a finding without direct testimony that the defendant knew whether or not the horse had a vicious habit of running and kicking.

Exceptions sustained.