I concur in the judgment, on the ground that the court below erred in giving the instruction quoted and commented on in the opinion of Justice Works.
The instruction makes the defendant responsible if to his knowledge the horse was gentle and free from vice, provided the jury find that the horse was not gentle. This is equivalent to holding that the defendant guaranteed that the horse was gentle, and was therefore bound to indemnify the plaintiff for any damage which he suffered by the vicious act of the horse. If the defendant knew that the horse was not gentle, and represented to the plaintiff that he was, and the plaintiff, relying on such representation, and induced by it, assisted defendant in hitching him, and while rendering this assistance suffered from the vicious conduct of the horse, he (the defendant) would be responsible. The defendant would also be responsible, if in ignorance of the fact whether the horse, which was an unbroken colt, was gentle or not, he carelessly represented to plaintiff that he was gentle, and the plaintiff relied on such representation, and acting on it, received an injury.
I find no other error in the record.