Chase v. Boody , 1875 N.H. LEXIS 133 ( 1875 )

It appears from the case, that evidence was offered tending to show that the boy, by whose negligence the accident was occasioned, was accustomed to care for the horses that were left there, and that, under the circumstances, the defendant might reasonably have expected that the boy would have undertaken to water the horse if no directions were given him to the contrary. All this evidence was in fact evidence of the custom of that place, and of the same nature as that which was excluded, and which ought to have been admitted so as to have the whole custom before the court.

The court has found that the negligence of the boy occasioned the accident. I can see no way by which the defendant can be made responsible for this carelessness of the boy, unless the fact found, that he ought reasonably to have expected, under the circumstances, that the boy would interfere, amounted in fact to an employment of the boy, so as to make the defendant liable for the negligence of the boy as his servant.

I do not think that the court could safely infer what the defendant ought to have expected, without having the whole evidence of the custom of the place proved.

It appears to me, therefore, that the evidence was improperly rejected, and that, for this reason the verdict must be set aside.

LADD, J. I also think the facts reported show no ground upon which the defendant can legally be held liable for the injury to the horse. The injury happened by reason of the negligence of the boy in turning it loose into the yard. Upon what ground was the defendant chargeable for that?

An amendment to the case states that the boy's interference with the horse was, under all the circumstances of his being at Mrs. Caverly's, and the circumstances and silence of the defendant in leaving the horse there, natural, and what it would be reasonable to apprehend he would do. Whatever may be meant by this singularly loose and conjectural statement, it is all I find to connect the defendant with the boy's act at all, unless it may be the fact that he knew the boy was at home. Was the boy (being sixteen years old) incompetent to water a horse? Nothing of that kind appears. Did the defendant know his incapacity? Of course that does not appear, because it does not appear that he was incompetent for that service. The amount of it is, that, having properly taken care of the horse himself, and given no directions that anything further should be done with the animal either by the boy or anybody else, he went away about his business, and this he did with knowledge that there was a boy sixteen years old about the premises. If the boy had been a wolf and the horse a lamb, it might have been a want of ordinary care to go away without chaining the wolf, or putting the lamb in some place where it would be safe against his attacks. If it were found anywhere in the case or the amendment that a person of average prudence would not only have apprehended an interference by the boy with the horse (that is, that he would attempt to water the animal), but, further, would have foreseen that such interference would be likely to result in injury, so that he ought to have provided in some way that the interference should not occur, there would be ground to argue that the defendant was guilty of negligence in going away as he did without placing a guard over the horse, or in some other way providing for its safety as against the boy in his absence. As it is, I am entirely at loss to understand upon what conceivable ground it can be supposed that the defendant is responsible for the consequences of the boy's act in turning the horse loose into the yard.

Verdict set aside.