Center v. Finne , 1 Seld. Notes 80 ( 1853 )

Action to recover for injuries done to the plaintiff in consequence of the defendant driving his horse and wagon against plaintiff’s wagon, in the highway. The plaintiff was driving a span of horses before a wagon, on the highway, in Washington county, and the defendant following him with a single horse before a wagon. The plaintiff, by his manner of driving, striking and starting his horses forward suddenly when defendant approached, and then slackening his speed until defendant again approached, rendered defendant’s horse somewhat restive, although he at no time came within two rods of the plaintiff’s wagon. The defendant then stopped about twenty minutes, and the plaintiff drove on. The defendant, at the distance of one and a half miles further on, came up near plaintiff’s wagon, and when within about twelve rods his horse was seen to be very restive, and to act badly; defendant struck him several blows, when he became unmanageable, and ran with great force against plaintiff’s wagon ; the plaintiff’s horses took fright and ran away, throwing the plaintiff out of his wagon, and doing him great injury.

The court charged the jury, that if the defendant drove his horse against the plaintiff’s wagon, and thereby occasioned the injury, he was liable, although he did it with the view to save himself from a greater hazard. That if the injury sustained by the plaintiff was in any degree owing to his own negligence, he was not entitled to recover.

The defendant requested the court to charge the jury, that if the defendant’s horse had become unmanageable, so that he could not control him, without fault on Ms part, he was not liable. The court refused so to charge, and defendant excepted.

Also, that if the plaintiff, by Ms manner of driving his own team, had so irritated the defendant’s horse that he became uncontrollable, he could not recover. The court refused so to charge, on the ground that there was no evidence to warrant that instruction, as it did not appear that the plaintiff’s driving was in the least improper at the time of the accident. The defendant excepted.

Also, that if the plaintiff might have avoided the accident by turning out of the road, and neglected to do so, he could not recover. The court refused so to charge, and the defendant excepted.

The plaintiff recovered, and the judgment was affirmed in this court.

(S. C., 17 Barb. 94.)