In effect, the referee has found, as matter of fact, not only that the plaintiff's servant was guilty of negligence, but that the injury complained of would not have happened had it not *Page 612 been for such negligence. These findings preclude a recovery in this case.
By intrusting his team to the servant for the purpose of driving it home, the plaintiff put it in the servant's power to manage the team negligently, and must be deemed to have assumed the risk of the servant's negligence in the execution of the trust so committed to him. And, moreover, as in contemplation of the law he who does a thing by the agency of another person does it himself, the case further stands, in respect of the servant's negligent act in leaving the team unhitched and unattended in the public highway, precisely as it would if that act had been done by the plaintiff himself. This being so. it is immaterial that the conduct of the defendant may have contributed to the injury. A party cannot be heard to complain because others have failed to exercise a higher degree of care than he himself has exercised. Between two wrong-doers, the law will leave the consequences where they have chanced to fall.
Divested of extraneous matter, the case in this: The plaintiff intrusted his property to a servant, who failed to discharge his duty in protecting it, whereby the plaintiff has sustained an injury. The servant would seem to be liable to respond in damages, but if not, the plaintiff is plainly remediless. Exceptions sustained.
Judgment for the defendant on the report.
CARPENTER, J., did not sit: the others concurred.