Marshall v. Bingle , 36 Mo. App. 122 ( 1889 )

Biggs, J.,

delivered the opinion of the court.

This is an action for damages arising out of alleged negligent treatment and unusual and excessive driving of a team of horses hired by plaintiff to defendants, which resulted in the death of one of the horses, of the value of two hundred and fifty dollars.

The suit was instituted and tried before a justice of the peace, where the plaintiff had judgment. On appeal to the circuit court, the case was tried by a jury, which again resulted in a judgment for the plaintiff.

The defendants (having unsuccessfully moved for a new trial) have brought the case here for review, and assigned the following reasons why the judgment of the circuit court cannot be upheld:

First. Because the court committed error in giving the following instruction asked by plaintiff: ‘ ‘The court instructs the jury that if they believe from the evidence in this case that plaintiff on the eighth day of April, 1888, delivered and hired to defendants a certain team of horses and surrey, mentioned in plaintiff ’ s petition, that at the time the same were delivered to defendants, the said horses were in good condition and healthy, that the defendants negligently, wrongfully, carelessly, and excessively drove or maltreated said team of horses while in their possession, so that by reason thereof, one of said horses died from the effects of such maltreatment, then the jury will find for the plaintiff, and assess his damages for such sum as they may believe from the evidence said horse was worth at the time said horse was delivered to the defendants.”

Second. Because the court refused to permit defendants’ witness, “ Kaiser,” to give his opinion as to the effect that such a drive, as defendants’ proof showed, would have had on a horse, that was sound and healthy.

Third. Because the court refused to give the following instruction asked by defendants: “If the jury find that the mare in question was, at the time the team was delivered to defendants, apparently well, but that at said time her condition was such that ordinary driving would cause her to grow sick, and that whilst, the defendants were driving her with ordinary care, she did by reason of such condition grow sick, and afterwards died from such sickness, there can be no recovery in this case and the verdict must be for the defendants.”

I. The objection made by defendants to plaintiff’s instruction is, that there is no evidence that defendants maltreated the horse. There was evidence tending to prove that the animal died from the effects of excessive or fast driving. Might not this be designated as maltreatment f But aside from this, defendants admit that they first discovered that the horse was sick, when driving on Boyle avenue, about one mile from plaintiff ’ s livery stable ; that instead of driving the horse directly to plaintiff’s stable, they drove a distance of four or five miles in the opposite direction, and returned the horse two or three hours afterwards. We think this action of defendants towards the animal could very properly be called maltreatment. We do not think defendants have any ground of complaint on that score.

II. Defendants’ testimony tended to prove that the horse was driven by them about thirty miles, between two o’clock in the afternoon and nine o’clock in the evening. That they rested the team at intervals, and drove at a moderate pace. Defendants’ counsel asked a witness, “what effect, in his opinion, such driving would have had on a horse that was sound and healthy.” The court would not' permit the witness to answer, for the reason that it had not been shown that the witness had any special knowledge of the subject. The witness testified that he had owned horses for two or three years and had one or two sick horses. We do not think this witness could form any better judgment, than any member of the jury. Expert testimony is always dangerous, and should never be resorted to, only when the subject-matter of investigation is beyond the knowledge and experience of ordinary men. And in a proper case, it ought to be made to appear, that the witness, whose opinion is asked, possesses peculiar means of forming a correct judgment. This assignment of error will have to be ruled against the defendants.

III. Defendants also insist that the judgment ought to be reversed, and a new' trial granted on account of the refusal to give the instruction asked by them.

Defendants’ theory was that the animal died from causes, in no way attributable to fast driving by them, and this is the idea sought to be conveyed by this instruction. We think this question was fairly presented to the jury not only by plaintiff’s instruction, but also by the instructions given by the court on motion of defendants. The defendants’ instructions were as follows:

“ Unless the jury are satisfied by a preponderance of the evidence that the defendants did not use ordinary care in driving and caring for the team mentioned in the evidence, the verdict must be for the defendants.” “The court instructs the jury that the burden of proof is on the plaintiff to establish to their (the jury’s) satisfaction, by a preponderance of proof that the defendants failed to exercise ordinary care in driving and caring for the team in question whilst in their control — and second, that such failure to exercise such care caused, the death of the mare sued for; and unless the jury are satisfied from the evidence of both such facts the verdict must be for the defendants.”

“The court instructs the jury that if the plaintiff hired the team mentioned in the evidence to the defendants for the purpose of being driven during the afternoon and evening, then the plaintiff thereby warranted to said defendants that said team was ordinarily fit and suitable for said purpose ; and if the defendants drove and cared for said team with ordinary care whilst under their control, there can be no recovery in this case.”

The jury could not have misunderstood the law as declared by the court.

Plaintiff’s instruction predicated his right to recover, on the fact that the horses were healthy and in good condition when hired to defendants. The defendants’ instructions directed the jury to find for defendants, unless the defenddfhts failed to exercise ordinary care in driving the horse and that such failure caused the death of the animal The jurors were also instructed that the plaintiff in his contract of hiring warranted the horse to be fit and suitable for the purpose for which it was hired. The instruction refused was merely the expression of the same idea in a different form, and defendants could not have been prejudiced by its refusal.

We find no substantial error in the record and the judgment will therefore be affirmed.

All the judges concur.