The opinion of the court was delivered by
Redeield, J.Two questions are made in the present case. 1. Is the declaration sufficient on motion in arrest? It is very general, both in regard to the description of the negligence, and the stating the obligation resulting from the defendant’s business. It would, however, seem to be sufficient to put the defendant on his defence,— at all events, after verdict. It is not in assumpsit, as contended, *569but in case, I apprehend, and is an exact copy of one of Chitty’s precedents, which is in common use.
The second question is one of variance merely. The allegations in the declaration are, that it was the duty of the defendant to use due and proper care that the plaintiff’s daughter should be safely and securely carried ; yet that the defendant did not use due and proper care, &c., — negativing the former allegation, — but wholly neglected so to do, — stating that thereby the coach was overturned.
The testimony objected to and admitted, to which decision the defendant excepts, was, that the coach was overloaded, that the team was unsafe and timid, and that it was unsafe to drive six horses. We do not perceive why this does not come fairly within the issue. The due and proper care, which it is alleged the defendant was bound to exercise, in order that the plaintiff’s daughter should be safely conveyed, had reference naturally to the entire travelling arrangements, — horses, coaches, load, &c., — as well as to the driving.
How it could be shown that it was unsafe to drive six horses, it is not easy to conjecture. But testimony admitted for that purpose would at most be useless and idle ; and if a jury should presume to decide, even, that on a given day, and upon a particular road, it was positively unsafe to drive six horses attached to a stage coach, I do not well perceive how their verdict could be evaded, unless by establishing some new rule of trial, or by detailing the entire evidence in the case verbatim,, so that the court could say that there was no evidence tending to such a result. I am not prepared to say that it could be determined, as a question of law, that any given proposition, which was one of fact, however absurd, was incapable of proof, unless it were a simple proposition, contrary to the laws of nature. Judgment affirmed.