Henry v. Klopfer , 147 Pa. 178 ( 1892 )

Opinion by

Mb. Justice Williams,

in No. 138, Oct. T. 1891.

The defendant drove to the express office on Federal street, in the city of Allegheny, in March, 1890. Turning up to the curbstone in front of the office he alighted from his buggy and went directly inside, leaving his horse unhitched and unattended in the street. Before his return the horse became frightened, dashed along the street at a rapid pace, and ran over Mrs. Henry, who was at the time in the act of crossing the street. She alleges that she was seriously injured. This action was brought to recover damages, resulting from the wounds and bruises received at the time of the accident, and resulted in a verdict in her favor.

The appellant complains that the verdict was rendered under the influence of erroneous instructions, which he has assigned for error. The first of these alleges, that “ the court erred in charging that the act of the defendant was not negligence per se, and then reading authorities to show that it was.” If the learned judge charged more favorably to the defendant than the authorities justified, he certainly ought not to complain of that. But on examination we do not find the charge fairly open to the criticism made upon it. What the judge did say was, that he was not disposed to say, as matter of law, that the act of the defendant, in leaving his.horse unhitched in the street, was negligence ; but that it was evidence, prima facie, of negligence, and put the burden of proof upon the defendant. If there were circumstances which excused or justified his conduct, it was for him to show them. If none such were shown, the fact, unexplained, that he had left his horse, unattended and untied, in a public street of a city, was enough to justify a verdict against him. The authorities read support this view of the effect of the defendant’s act, and this is the rule that the learned judge characterized as the rule of common sense.

The second assignment complains, that the characterization, by the learned judge, of the rule which he gave to the jury as the rule of common sense, was equivalent to an instruction that a verdict for the defendant would be against common sense. This is clearly a non sequitur. The law is said to be the perfection of human reason, and to embody the common sense of the people. Every rule of law is, presumably, a common sense rule. Whether the jury adopt that view of the rules laid down for their guidance or not, they are bound by them. The court declares the law. The jury finds the facts. What the defendant did, under what circumstances he did it, and whether these circumstances relieved him from the charge-of negligence, were the questions of fact on which the jury were to pass. If they found that no circumstance were shown that could excuse the defendant’s act, then, under the rule of law which the court gave them, their duty was to find for the plaintiff, and it could do no possible harm that the learned judge, in laying down this rule for their guidance, also commended the wisdom of the rule. Wise or unwise, they are bound by it.

The third assignment is taken out of a sentence which, read together, is unobjectionable. That part of the sentence, which appears in the assignment, is as follows: However peaceable he may have known it to be, here was a horse whose disposition he, in the nature of things, could not fully know.” This is treated as in effect an instruction to the jury that, however well the defendant knew his horse, he did not know his horse well; an absurd and contradictory statement. What the judge really said was this : “ And, even if it were justifiable to leave his own horse, however well he may have known it, however peaceable he may have known him to be, here was a horse, whose disposition he, in the nature of things, could not know.” The judge was contrasting the measure of care necessary to be exercised when using a horse, which one might know to be peaceable and safe, with that which should be exercised when using a horse with whose peculiarities he was not familiar. The defendant had -owned the horse he was driving, on the day of the accident, but a short time, and had driven it but little. If he would have been justified in leaving it, as he did, if he had owned and driven it for a long time, and knew it to be safe and gentle, was he not bound to a higher measure of care in driving this horse, which he had so recently bought, and of which he knew so little ? This was the thought to which the attention of the jury was being drawn when the sentence was uttered which has been dismembered in this assignment.

The only remaining question relates to the measure of damages in the action brought by the husband, which was tried with this one. It may be open to some verbal criticism, but it stated the plaintiff’s measure of damages with substantial accuracy. The jury was told, that the husband was entitled to recover, the moneys he had expended, or become liable to pay, for the medical care and attendance upon his wife during her illness, and for the loss of her services while unable to attend to her domestic duties. The jury was not misled by the verbiage employed by the learned judge, for their verdict was for $225, a sum fully justified by the evidence.

The judgment is affirmed.

In No. 137, Oct. T., 1891. — For reasons given in the opinion now filed, in Henry and Wife v. Klopfer, this judgment is affirmed.