Cadwell v. Arnheim

BARRETT, J.

The defendant was not held responsible for the runaway, but for the negligence of his driver in not at the time properly guiding the horses. The evidence was conflicting upon the point whether horses, while running away, can be guided to the-right or the left. There was enough to go to the jury upon this question, and they found that the defendant’s driver could have-averted the collision by guiding his horses to the right. That is this case in a nutshell. The plaintiff was driving quietly and properly upon the right of the road, going south. The defendant’s horses were running away upon the left of the road, going north. The plaintiff could not get any further to the right, because of the presence of trees. He, in fact, was at the extreme right of the road. He could not safely turn to the left. That would have increased his-danger. Indeed, it would probably have been fatal, in view of the proximity of the defendant’s horses and the speed with which they were approaching. The defendant’s horses were upon the wrong, side of the road, dashing forward directly in front of the plaintiff, who was, as we have seen, upon the proper side. It was plainly-the duty of the defendant’s driver, when he found that he could not stop his horses, to guide them, if possible, to the right, and thus-to pass the plaintiff without a collision. As the evidence was sufficient to justify the jury in finding that the defendant’s horses could have been thus guided, and that the driver failed to make a proper effort in that direction, the verdict should not be disturbed.

The evidence failed to substantiate the defendant’s contention-that the plaintiff was himself guilty of negligence. On the contrary, the burden of showing freedom from contributory negligence was fairly met by the plaintiff. In fact, there was nothing which, under the circumstances, the plaintiff could possibly do which he did not do. Had he done what the defendant insists he should have done, he would have been far more amenable to criticism. It would have been shockingly bad judgment to risk a turn to the-left at such a critical moment, and the result would probably have-been far more disastrous than it was. The plaintiff had a right to expect that the defendant’s driver would make an effort to guide his horses to the right. He cannot well be blamed, therefore, for not guiding his own horses in such a way as, had the driver fulfilled his-just expectation, would certainly have precipitated a violent and doubtless fatal collision.

*575The exceptions taken by the defendant to the reception and rejection of evidence were, in the main, unimportant. But none of them raises any question of substantial prejudice.

As to the charge, we think the case was fairly and correctly submitted to the jury. The defendant insists that it was error to charge certain of the plaintiff’s propositions to the effect, in sub- • stance, that, if the defendant’s driver was guilty of negligence, “the plaintiff was entitled to recover.” It is contended that the question of contributory negligence was thus withdrawn from the jury. But it is evident from the entire charge that this was not intended; nor could the jury have so understood it. The learned judge repeatedly instructed the jury that, if the plaintiff was guilty of contributory negligence, he could not recover. In one part of his charge we find the following statement of the law:

“It is necessary, in order that he recover, that he should satisfy the jury that this collision was caused by negligence on the part of the defendant’s coachman, and that he, himself, was free from fault, and that his own negligence did not contribute to the accident; and the burden of proof is upon him to satisfy you upon these points.”

In another part of his charge he says:

“As I have already stated, it is undoubtedly true, as a matter of law, that a plaintiff who is in fault himself, and who has not exercised ordinary care, cannot recover in a case of this description; and I shall, in this case, leave it to the jury to say whether there was any want of ordinary care on the part of the plaintiff.”

And, again, in summing up upon the whole case:

“The jury have heard all the testimony, and have heard the comments of counsel, and understand the situation, and I will leave it to them to say whether they think the plaintiff failed in exercising ordinary care under the circumstances. If he did not, he cannot recover; but if he did use the ordinary care that is to be expected of a driver under these circumstances, and the coachman was guilty of negligence that brought on the collision, then the plaintiff is entitled to recover.”

It is clear, therefore, that the expression complained of in the plaintiff’s propositions related solely to the legal bearing, upon the defendant’s general responsibility, of the negligence of his driver. What wras intended was to convey the idea that if the driver could, with proper effort and diligence, have turned his team to the right, and thus avoided the collision, the defendant’s negligence was made out. It must have been entirely clear to the jury that the proposition was in harmony with the learned judge’s colloquial charge, and they must therefore have understood that the proviso of that charge with regard to contributory negligence was, as a matter of course, the starting point of these propositions.

The defendant also complains of the following proposition, which, at the plaintiff’s request, the learned judge charged:

“It is conceded that, at the time of the collision between the plaintiff’s team and the defendant’s team, the plaintiff’s team was being driven on the right of the centre of the road in a southerly direction, and the defendant’s team was being driven to the left of the center of the road, in a northerly direction.”

*576It was conceded that the plaintiff’s team was being driven upon the right of the road, going south, and that the defendant’s team was running away upon the left, going north. The complaint relates to the use of the words “was being driven” as applicable to the defendant’s team. This complaint seems to be frivolous. The jury could not have failed to understand what was meant. Indeed, the driver still held the reins, and, in a general sense, was ■driving, though not as well as he should have driven.

The defendant also urges that the learned judge should not have ■charged that the defendant’s team was unlawfully and improperly on the left of the center of the road. But that was simply an abstract proposition, emphasizing the general law of the road. The concrete proposition, affecting the case under consideration, was put to the jury most favorably to the defendant when the learned judge subsequently, at his request, charged as follows:

“That if these were runaway horses, and not under the control of the ■driver, and the driver used due diligence and the best of his ability as a ■skillful driver to control the horses, and could not control them, that then the law of the road as to which side the horses ran on after the fright ■does not apply.”

So as to the charge with regard to the presumption of negligence attaching to a violation of the law of the road. This was correct. ■Shear. & B. ISTeg. §§ 13, 650-652. But this was also an abstract proposition, as the case was put to the jury solely upon the negligence of the defendant’s driver in not guiding his horses to the right, and thus avoiding a collision, as he might have done.

There are no other points with regard to the charge worthy of ■special consideration. We And no error to the prejudice of the ■defendant,—none which would justify a reversal. The judgment and order denying the defendant’s motion for a new trial should be .affirmed, with costs.