The opinion of the court was delivered by
Huston, J.This case brings into consideration a point or points on which not much is to be found in the books. There are many cases in which the person who hired a horse rode or drove him, and his duty and responsibility have been discussed, and though some discrepancy is to be fo.und, yet perhaps it may be said to be settled, to what extent, and under what circumstances, the hirer is liable.
In this case, ten points are submitted to the judge, on which he is requested to charge the jury. It will be seen that almost all of them apply to cases in which he who hired a horse drove him, or employed or intrusted some person to drive.
There is a. difference, in reason and in law, arising from the circumstances of each case. If a horse is hired lo me, and I am to ride or drive him, I am to judge of what distance he can travel in a given time, and to see that he is not overheated or too much fatigued. But if, as often happens, the owner himself goes along and drives, I have no care of the horse, and no responsibility if he is injured. But if the owner sends a driver, who is to drive, and •water and feed the horses, it is as to me the same as if the owner himself drove. If his driver oversets and breaks my arm, his master is liable to me; and if, at the same time, the carriage is broken, I am not liable to the owner: it was not done by me, but by him*563self or his servant. But a horse may be hurt at the same time— I am not liable for that; it was the result of the carelessness or unskilfulness of the owner or his servant. And wherever the owner sends a servant to drive and take care of the horses, he who is carried has no responsibility, unless the injury occurred from some act or interference of his. In Jones on Bailment 123, edit, of 1796—p. 88, edit, of 1804, under the fifth class of bailment, viz. “ Hiring,” we find, “ If Caius hire a horse, he is bound to ride it as moderately, and treat it as carefully, as any person of common discretion would ride and treat his own horse; and if through his negligence, &c.,&c. If, indeed, he hire a carriage and any number of horses, and the owner send with them his postilion or coachman, Caius is discharged from all attention to the horses, and remains obliged only to take ordinary care not to injure the glasses and inside of the carriage while he sits in it.”
The above is common sense and sound law, and if we do not find this doctrine more often repeated, it is because, on the authority of this writer and on reason, nobody has supposed the person who hired the horses and the driver would be considered answerable where the owner would not and did not trust him, but sent, his own servant.
A class of cases was cited, in which the dispute was, if a carriage driven by the owner’s servant, is hired by Cains, and while he is in it an injury is done to a third person, by carelessness or otherwise, whether Caius or the owner of the carriage, whose servant drove it, is answerable to this injured person. The cases are contradictory, and of course some of them wrong, but as they do not apply to this case, I need not decide.
It was stated by the counsel on both sides, that not half the testimony given in the cause is brought up, or on our paper-book. This is the fault of the counsel, or of one of them. If all the evidence was here, we would not be at a loss to know how most of the questions proposed to the court were intended to be applied to this case.
The only doubt about this case arises from two passages, in which the name of Mr Brady is used. First, before the carriage started, Brady, who had been invited to go along, said, in the presence and hearing-of Hughes, one of the owners, that unless the carriage came back that night, he would not go, and Hughes saw him get in and said nothing; it was properly left to the jury to decide whether this was not an assent by Hughes that it should return that night.
The next is, it would seem that Brady offered to return in the stage, and leave the driver and carriage. Before this Boyer, the defendant, had gone on to Baltimore. If, upon this offer of Brady, says the judge, the driver of his own accord returned, Boyer was not liable. There was no error in this; the owner had put the driver in his stead, to act for him, and Boyer was not liable for a *564matter done in his absence, and not with his knowledge nor by his direction.
■ As to every one of the points, it may be observed, the court answered most of them as requested, but intimated that they were not applicable to the case trying; they related to a case in which he who hired a horse rode or drove him. The fifth puts the case of a driver sent, but so specially, that the court, without denying it, stated the law as applicable to this case. “ Where a driver is sent with a carriage and horses hired, the person hiring is not answerable for any damages suffered by the horses, unless such injury was occasioned by the hirer interfering with the driver, so as to occasion the injury. The driver is the servant of the owner, who sent him along, and unless the hirer requires and occasions the driver to go beyond the contract of hiring, he will not be answerable for the acts of the driver in regard to any injury sustained by the horses of the owner.”
This is the law, as cited and stated above. We have had occasion too often to remark that points are proposed to the court on a supposition that the facts are different from those proved in the cause, or to get an opinion on some point of law not exactly the same with that applicable to the case trying. This may mislead the jury, and it is the duty of the court to put the matter in its true point of view, and tell the jury what the law is in the case before them. One other error is alleged: the court stated that horses sickened and died under the care of the most careful persons, and those persons the owners; and if, travelling at a moderate gait, the disease was developed, and the horse died of some previous disorder, the defendant was not liable. There was no error in this; if one, and that the best of the horses, sickens and dies in a journey, the fair inference is, that he was diseased before; any man would say so if using his own horses himself, in his own business. May not a jury say so in judging between other people? The king’s bench, in England, and afterwards the court in the last resort, have decided “that it is competent to a jury to find matters of fact, without direct or positive testimony of those facts, and upon circumstantial evidence only, though the inference or conclusion to be drawn from the circumstances proved, be not absolutely certain or necessary; and that it belongs to the jury to draw the inferences from the facts proved.” Mansel on Demurrer 309.
This is all which it is necessary to notice in deciding on this case.
Judgment affirmed.