The fallacy upon which the defendant’s complaints of the instructions given to the jury are based, consists in the assumption that it was a special and express contract that the horse was kind and free from vice, that the plaintiff declared upon, instead of the promise implied by law and growing out of the relation of the parties as bailor and bailee of the animal for hire. It is true that the plaintiff and his witness to the contract of hiring, testify that both the defendant and his hostler recommended and warranted the horse, except in the matter of laziness, but that testimony was not essential to the plaintiff’s case.
When it was proved and admitted that the defendant was a livery-stable keeper, and that he let the horse for hire to the plaintiff for the trip, the law settles the contract upon the bi’each of which the plaintiff counts ; and if the defendant claims to be relieved by reason of any special negotiation between the parties, through which the plaintiff assumed any risk which the law would not otherwise impose on him, or if he gave the plaintiff any particular information with regard to the habits of the horse, which called for special and extraordinary care on the part of the plaintiff in driving, as to such matters the burden of proof rested on the defendant, and the jury were rightly so instructed.
It was not incumbent on the plaintiff to prove that no such exceptional element entered into his contract. The burden rested upon the party which affirmed that it did. There was no controversy between the parties as to what the contract was, except what the defendant introduced by undertaking to satisfy the jury that there was superadded to it, something out of the ordinary course, which affected the mutual obligations, duties, and liabilities of the parties to each other.
The substance of the defence was not that the horse was a kind horse, suitable to let, and not liable to kick when driven with *154ordinary care, as he should have been to fulfill the contract on the part of the defendant in the particular as to which the plaintiff alleged a breach, but that when the horse was let he told the plaintiff, " if he took her he must not strike her on the rump, for she is liable to kick — on the rump, or on the flank — and if he took her he must take her on his own risk; he said he would run the risk,” and that after the horsó was brought back there were marks of the whip on and under her flank, upon the strength of which he claimed that her kicking was caused by the plaintiff’s neglect of his injunction. To make this defence avail as an excuse for the breach of his contract in letting a vicious horse, defendant must establish a fact which was outside of the contract declared on, to wit: that the plaintiff was informed of the vice of the horse and agreed to take the risk, or that after receiving such information he so conducted as to cause the accident himself. But all depended upon proof of matters which were outside of the issue tendered by the plaintiff; for it could not be said that it would be a want of ordinary care to strike a horse with the whip on the rump or flank, unless the person in charge had been informed that if so struck he was likely to become unmanageable and kick. A vital element in the proof here was, the giving of the warning, which the defendant asserted and plaintiff denied. It was no part of plaintiff’s duty to prove the negative. The defendant held the affirmative, and the burden was on him. If defendant would exonerate himself from compensating the plaintiff for a damage suffered by reason of what was, upon his own showing, a breach of the contract that he enters into every time he lets a horse for hire, it was incumbent upon him to satisfy the jury of the facts that would have that effect. Here was a new and distinct question raised by the defendant. Tarbox v. Eastern Steamboat Co. 50 Maine, 339, 345; Brackett v. Hayden, 15 Maine, 347.
But the defendant further complains that the presiding judge omitted to instruct the jury " that the burden of proof was upon the plaintiff to show affirmatively that his acts in no way contributed to the alleged injury,” and also, "to show affirmatively that in driving said horse at the time of the alleged injury, he *155was in the exercise of ordinary care.” If the presiding judge had given the first of these instructions upon the case here presented, the plaintiff might have had ground of exception; for unless he had been warned that a blow upon the flank with the whip was likely to cause the horse to kick, an act of his might have contributed to produce the injury while it would not preclude his recovery.
But the jury had, among others, the following instructions: "If the plaintiff was injured through his own fault in striking the horse or using him in a manner which he ought not, so that he himself was careless, and that carelessness contributed to produce . the injury which he received, he cannot recover; such is the law; and your verdict should be for the defendant.”
"If the defendant disclosed to the plaintiff the fault of the horse, that he ivas liable to kick when struck, or struck in a certain manner, so that the plaintiff had knowledge of the viciousness of the horse, and then took the risk to use him, and then struck him in the manner which he was admonished it would not be safe to do, and the horse was thereby caused to kick, and the plaintiff thereby received his injury, he cannot recover.”
" If you find that he was not made to kick by any such treatment, by any blow inflicted, or by any other fault on the part of the plaintiff, but kicked through viciousness, a viciousness known to the defendant, and because he was liable to kick when not struck, when there was no provoking cause, and the plaintiff was without fault, why then, that ground of defence fails.”
" If you are satisfied that the defendant did not disclose the fact that the horse was accustomed to kick, under any circumstances, to the plaintiff, then I understand his learned counsel to concede that if the plaintiff, -while using the horse with ordinary care and prudence, Avas injured by a kick from him on account of the vicious character, the vicious habits, so to speak, of the horse, that he can recover.”
We think that these and other instructions given so far covered the case that if the defendant desired a more distinct instruction as to the burden of proof upon the question of due care, he should have requested it; and that, in the absence of any such *156request, exceptions ought not to be sustained for the omission. Harpswell v. Phipsburg, 29 Maine, 315; Stone v. Redman, 38 Maine, 580.
The motion cannot be sustained. The vicious character of the horse and its unfitness to be let from a livery stable, was abundantly established by the testimony adduced by defendant, as well as by plaintiff. Upon the question of avoidance of liability by warning given, it is worthy of remark that the defendant and his principal witness, the hostler, do not agree as to the character and extent of the warning; and the plaintiff and his witness emphatically deny that there was any whatever. The defendant must abide by the finding of the jury.
Motion and exceptions overruled.
Appleton, C. J., Daneokth, Yirgin, Peters and Symonds, JJ., concurred.