
    William E. Nichols, Respondent, v. Henry H. Balch, Appellant.
    (New York Superior Court—General Term,
    May, 1894.)
    One who takes a horse on trial, with a view to its purchase, and returns it in a damaged condition, is liable for the injury, unless he can account for the injury which caused it and show that it was without fault on his part, or that he used such ordinary care that the proper inference would he that the injury was unavoidable.
    Defendant, who wanted a horse for his use in a cavalry troop, took a horse from plaintiff on trial, and returned him with a fractured leg, which rendered it necessary to kill him. In an action for his value, defendant testified that the horse was excited and would rear when he met bicycles; that, notwithstanding this, he rode him for about sixteen miles, and jumped him over a fence; that he became lame when near home and that defendant then dismounted and led him; that it was not his way to take a horse oil on a side road when he became frightened at bicycles, but he would conquer the horse or be conquered by him, and that he did not recollect of the horse injuring hiniself. There was also evidence to show that a horse might sustain wounds or fractures in the hands of a careful driver who might not know or perceive it at the time. Held, that whether the defendant used ordinary prudence in riding and managing the horse was a question of fact for the referee, and that his decision in plaintiff’s favor would not'be disturbed.
    Appeal by defendant from judgment entered upon report of referee.
    
      Frederick W. Sherman, for appellant.
    
      Edward F. Dwight, for respondent.
   Sedgwick, Ch. J.

The action was for damages from the negligence of defendant. The plaintiff was the owner of a horse, kept by him at Dickel’s stables in Seventh avenue near Fifty-ninth street. There was a talk between plaintiff and defendant concerning the possible sale of the horse. The defendant said: “ I am in need of a horse for my use in Troop A, and if the horse suits me I will either buy or rent it.” The plaintiff thereupon delivered the horse to defendant to be tried and tested by him. The horse was returned to the stable with the larger bone of a leg below the knee broken. It became necessary in a short time to kill him. The action was for the value of the horse and expenses.

The referee found for the plaintiff.

The defendant, when a witness on the stand, testified that on riding the horse he was excited naturally at first, particularly going under the elevated roads; that it took some time to get him under them; that he caused him a good deal of trouble at almost every bicycle he met; that they met a good many of them up to Claremont; that if they came too near he would rear, and he reared frequently; that between the bicycles the witness would quiet him. by caressing him, and then when he met a bicycle he would rear again; that he kept up “ more all the way up than he did coming back ; ” that at four or five miles from starting he jumped him over a fence two_ or three feet high; that the horse did not strike or injure himself any way, so far as the witness recollected ; that he rode to Yan Oortlandt Park, turned and came back through the Central Park; that when the horse was about two-thirds of the way home he began to do nicely; that about one mile from the stables the witness perceived that the horse was lame, and he dismounted and led him to the stable. On cross-examination the witness testified in answer to the questions: “Q. When you saw the horse getting frightened at the bicycles why did you not take him off into some side road ? A. That is not the way I do when I ride a horse. Q. Ho matter what he did you would still keep on the ride ? A. I would either conquer him or he would me. Q. Even at the expense of hurting the horse? A. Yes. Q. Ruining him? A. Yes. Q. Do you think you conquered the horse? A. Yes.” He testified, also, that the ride was about sixteen or seventeen miles long, and that at Yan Oortlandt Park he put on a curb bit in case the horse should run away. The witness did not go to see the horse for two days, and did not communicate with the plaintiff until the same time. He said it was not necessary for a troop horse to be able to jump, but very desirable.

The referee was supported by testimony in finding that the horse had been ridden many times in the streets, in the park and in the ring of the stables, and had not manifested the unsteadiness and fractiousness shown on the ride taken by the defendant. There was evidence that the horse had been spirited, kind and docile. It had been used out of the stable two or three days before the accident. There were witnesses who testified that a horse might suffer wounds and fracture in the hands of a careful driver who might not know or perceive such occurrences at the time or for some time afterwards. The evidence was subject to sifting by the referee in order to know its substance. The referee might competently find that such a thing occurred so very rarely that it was not probable that it occurred in this particular case, or, on the other hand, that the defendant subjected the horse to circumstances which he should have known were likely to lead to an accident at one point or another, which might turn out to have been unknown to him at the time.

A veterinary surgeon testified that a «fracture might be caused by a horse rearing and plunging upon a hard pavement if the “ pounding ” were heavy, and that the causes of fracture were violent efforts, jump, slip, sudden muscular contraction.

The plaintiff had raised, broken and ridden horses all his life. The referee was justified in finding that before the horse was taken out by the defendant he was a spirited, docile and kind horse. He was not vicious.

The counsel argue that the defendant, in using the horse, was bound to use ordinary care, and such care and attention as an ordinarily prudent man gives to his own property under the circumstances.

An unpaid agent is bound, however, to use such skill as he is shown to possess, and is guilty of culpable negligence if he does not. Wilson v. Brett, 11 M. & W. 113, cited in 1 Smith’s L. C. 356, and elsewhere in the same leading case. At page 121 of the same volume it is said that if a hired article is returned in a damaged state and the hirer will give no explanation or account of the injury, there is an implication of negligence, and the burden of disproving it is on him. Logan v. Mathew, 6 Barb. 417.

The referee was right in deciding that the defendant should account for the accident that caused the injury, and that it was without fault on his part; or that he should comprehensively prove that he used such ordinary care that the proper inference would be that the injury was unavoidable. When, prima facie, the injury did not probably occur when' due ordinary care was taken, the burden of proof was upon the defendant to show, if possible, that he had taken the proper care. It was claimed that it appeared that the nature of the injury showed that it might occur if care was taken in the management of the horse.

This presented a question of fact. The evidence did not compel the referee to find that this particular kind of fracture might occur in the usual course of things, without any want of care, and the fracture not be known to the rider. The manner in which the defendant gave his evidence, the shape or form of the testimony, were things which the referee might consider. For instance,, the defendant was asked: Q. So far as you know, did the horse injure himself in any way ? ” His answer was: “ Not as I recollect it.” Collins v. Bennett, 46 N. Y. 460; Fox v. Pruden, 3 Daly, 187.

The defendant did not prove how or where the injury to the horse occurred. He did not prove that he used such reasonable care that the injury must have occurred in spite of that.

The evidence of these subjects may have been conflicting, and the inferences from the testimony may have been diverse. There is nothing in the case that shows that the findings of fact were erroneous as matter of law.

The referee might properly find that in the first part of the ride such excessive fractiousness was shown, and was continued, that it was not prudent to extend the trial that was allowed by the owner for the purpose of defendant’s ascertaining the character of the horse. It was not within the intention or pur pose of either of the gentlemen that the trial should be of whether the defendant could conquer the horse or not. Hptoa certain time it would be the case that it was doubtful as to what would be the future conduct of the horse; but the referee could find that beyond that it might, or should, have appeared that to continue and to take the horse further in his excited and unruly state was to increase the danger to the horse beyond ordinary prudence. With the knowledge of the chances of accidental and, at the same time, unknown hurt to the horse, common prudence might have required that the horse should have been ridden home and not be subjected - to the dangers of a long course.

On the whole, the referee might have competently found that the defendant did not use the ordinary prudence of an owner in riding and managing the horse, and that, by the preponderance of the evidence, this want of prudence occasioned” the injury to the horse.

The judgment should be affirmed, with costs.

Freedman and McAdam, JJ., concur.

Judgment affirmed, with costs.  