
    *George Puterbaugh v. Christopher Reasor.
    Where P., pursuant to contract, furnished J. R. a team, to be used in the farming of lands of P., for the joint benefit of the parties; and J. R., whilst using the team accordingly, carelessly left it unfastened, whilst he engaged in a noisy affray with C. R., near to the horses, by which they were frightened and ran off, and one of them was killed: Seld, that the want of ordinary care of the team on the part of J. R., being a proximate cause of the injury, will prevent a recovery therefor, in an action brought by P., the owner, against C. R.
    In error to the district court of Montgomery county.
    The plaintiff in error brought suit against the defendant in error ■and one John Beddick, before a justice of the peace, charging the defendants with having unlawfully caused the death of his bay mare, on the 12th of September, 1853. Upon the trial, he recovered a'judgment against both the defendants for $96 and costs.
    The case was appealed by the defendant Reasor, and the plaintiff ( filed his petition in the court of common pleas, stating substantially the same cause of action — that, on the 12th of September, 1853, the defendants caused the death of his gray mare by their negligence- and by their willful and unlawful misconduct; that she was at that time worth $96, for which sum, with interest and costs of suit, he-asked judgment.
    The defendant Reasor answered, denying that he had either by himself, or in connection with said John Reddick, or any other person, caused the death of plaintiff’s bay mare, by negligence, willful,, and unlawful misconduct, or in any other way.
    The issue thus joined between the parties was tried by a jury, and a verdict rendered in favor of the defendant Reasor. The: plaintiff moved for a new trial, on the ground that the verdict was-contrary to law and the evidence, and that the charge of the court was contrary *to law. This motion was overruled, and judgment entered on the verdict.
    A bill of exceptions was taken on the trial, embodying the evidence, which shows substantially the following state of facts :
    John Reddick, who was sued jointly with Reasor, was, in 1853,. engaged in farming a portion of the plaintiff’s farm, on the shares. Puterbaugh, the plaintiff, found the grain, farming implements, and team, and Reddick raised the crops, and gave Puterbaugh a. certain share of the produce. On the 12th of September, when, the mare was killed, Reddick was harrowing in the plaintiff’s field,, with this mare, and another horse, both belonging to the plaintiff. The defendant, Reasor, was plowing in a neighboring field, which, was separated from the plaintiff’s field, by a lane, along which ran a country road. Reasor went over into plaintiff’s field, where-a quarrel took place between him and Reddick, which resulted in Reasor’s going over the fence, and inviting Reddick to come out on the road, if he thought himself the better man of the two. Red-dick accepted the challenge, and leaving his team unfastened,, crossed the fence, and after some preliminary “jawing,” the parties joined battle on the road. In the course of the affray, the parties came into contact with the fence, and the noise frightened -Red-dick’s team, which he had left standing about three rods distant from the scene of action. The horses ran a short distance with the harrow, when the “ bay mare ” was killed by striking against a tree.
    The court thereupon charged the jury as follows : “ The plaintiff alleges that a valuable mare, owned by himself, has been killed; through the instrumentality of the defendant, Reasor, and his co-defendant in the court below, Reddick. That the said Reasor and Reddick engaged in an affray, or fight at fisticuffs, near where the plaintiff’s team was standing, and made so much noise and confusion that the horses took fright and ran off; and in the act of running =*=off, the mare struck her breast against a sappling, or something of the kind, and killed herself; and the owner of the-mare asks a verdict, at your hand, for the value. If the defendant, Reasor, engaged in a fight at fisticuffs, with Reddick, by agreement, that is, if Reasor and Reddick fought, by agreement, so near to-the team of the plaintiff as to frighten them and cause them to run off, the defendant, Reasor, will be liable, unless you should find the running away of the team, in some degree, attributable to the negligence of the plaintiff himself. It is maintained by the defendant, Reasor, that Reddick was the agent of the plaintiff in his-custody and control of the mare, and that this appears from the proof. That it was no fault of him, Reasor, that the horses were left standing, unhitched in the field, whilst Reddick came out in the road to fight him ; that the act of Reddick, in thus leaviijg the team unhitched, was an act of gross negligence, contributing powerfully to the accident for which suit is brought; and, that, under the circumstances, the defendant, Reasor, ought not to be held liable, in law, to pay Puterbaugh for the mare. If Reddick had the custody of Puterbaugh’s mare, as the agent of Puterbaugh, and left her in the team, standing, unhitched, in the field, whilst he, Reddick, went out into the road to fight; if he then engaged in a fight, and whilst fighting, the horses ran off, the plaintiff can not recover, providing you should be of opiniori that such leaving of the team, unhitched, was an act of negligence, and that it was one of the causes of the horses running off, which it would be, if the noise of the fight occasioned them to run.”
    To this charge of the court, and to the overruling of the motion for a new trial, the plaintiff excepted.
    The plaintiff also moved the court to render judgment against Reddick by default, but “ the court having examined the papers, and heard the testimony, found that said Reddick did not appeal, nor authorize an appeal, in his *behalf, and was not in court,” and therefore overruled the motion.
    . The plaintiff thereupon filed his petition in error, in the district court, asking for a reversal of the judgment of the court of common pleas for sundry errors in the charge of the court as given to the jury, and for error in not charging what was necessary to constitute said Beddick the agent of the plaintiff, in so far as the custody of said mare and the cause of her being killed is concerned ; and also for error in overruling the motion for judgment by default against Beddick.
    The district court affirmed the judgment of the common pleas, and this judgment of affirmance the plaintiff now seeks to reverse.
    
      Lowe & Booth, for plaintiff in error.
    
      Conover & Craighead, for defendant in error.
   Scott, J.

Counsel have discussed at length the question as to the relation which Beddick sustained to Puterbaugh, in the possession and use of the team, at the time when the injury complained of took place. It is claimed for the plaintiff, that Beddick was a lessee of Puterbaugh’s field, and a bailee for hire of his team; while, od behalf of defendant, it is claimed that the evidence shows Beddick to have been working for Puterbaugh under a contract of hiring, by which he became the servant and agent of the plaintiff in the custody and care of the team. It is, perhaps, not essential in this case to determine the precise character of the relation created by the contract between Puterbaugh and Beddick. Whatever that relation may have been, it is not, and can not be, questioned but that under and in pursuance of their contract, Beddick was intrusted by Puterbaugh with the possession, custody, and care of his team, and was responsible to him for ordinary care of the horses, while under his charge. But *the defendant, Beasor, was no party to this contract, and it imposed no obligations upon him. As against him, and all other strangers, the possession of the team by Beddick was the possession of Puterbaugh. And the duties and liabilities of strangers, in respect to the horses, would be the same, whether their owner or his agent or bailee might have the actual custody of them at the time. Third parties would have a right to expect and require the same care from the one as the other.

It can not be claimed in this case, looking to the evidence, that the defendants willfully, or by an act of direct trespass, caused the dealh o£ the plaintiff’s mare. The plaintiff can only complain that they negligently and improperly made such a noise, in their fighting upon the highway, as to frighten ,his horses and cause them to run, whereby the injury to him was occasioned. For such a wrong, no doubt, the defendant, Reasor, would be liable, unless the negligence of the plaintiff, or of the person whom he had placed in charge of the team, contributed, proximately, to the injury. But if Reddick was guilty of such negligence in the care of the team as would preclude him, if he had been its owner, from maintaining an action against Reasor, this negligence must be equally fatal in an action brought by this plaintiff, who confided the team to Red-dick’s care. It is true that the plaintiff was not responsible for the unlawful act of Reddick in accepting the challenge and fighting with Reasor. But for leaving the team loose and uncared for while this noisy affray was occurring in close proximity, he was responsible, so far as others were concerned, if he intrusted the custody of the horses to Reddick; and his remedy, in such case, must be against Reddick alone. The charge of the court below can not be understood as going further than this, and gives to the plaintiff, as we think, no just ground of complaint.

We think the jury were justified, by the evidence, in finding that with ordinary care on the part of the person in charge of the team at the time, the injury complained *of would not have oc■curred; and that, as between the present parties, the plaintiff was chargeable with this want of care, and was therefore not entitled to recover against the defendant, Reasor. The same want of proper care which would give the plaintiff a cause of action against Red-•dick, must prevent a recovery against Reasor.

It is said the court erred 11 in not charging what was necessary to constitute said Reddick the agent of the plaintiff, in so far as the custody of said mare and the cause of her being killed is concerned.” But no instructions appear to have been asked or refused •on this point; nor, under the evidence, could any correct instructions on this subject have warranted a different verdict.

As to alleged error of the court in overruling the motion for the entry of judgment against Reddick, it is sufficient to say that this proceeding in error is prosecuted against Reasor alone. The petition filed is against him only. No summons in error appears to have been issued against Beddick, and he is not in this court. It will be time enough to determine whether judgment should have been rendered against him in the common pleas, when the.plaintiff in error shall have brought him into court.

Judgment of the district court affirmed. .

Brinkerhoee, C. J., and Sutliee, Peck, and Gholson, JJ., concurred.  