Creamer v. McIlvain

Boyd, J., delivered the opinion of the Court. The appellants sued the appellees for injuries sustained by Mrs. Creamer as the result of the horses, drawing a vehicle occupied by the appellees, running into one in which the appellants were riding. There are two counts in the declaration — -the first alleging that “ the defendants, because of their negligence and incompetency to properly drive horses, so negligently and unskilfully managed a team, by which they were being conveyed in the same direction, that said team struck the vehicle in which the plaintiffs were seated,” and the second, that “a vehicle under the management of the defendants, and drawn by two horses, which the defendants knew to be prone to become uncontrollable and to run away, ran into and struck the vehicle in which the plaintiffs were seated, with great violence, said horses having become uncontrollable, and ran away because of their proneness to become uncontrollable.” At the trial of the case the Court below granted two prayers — the first in substance instructing the jury that there was no evidence legally sufficient to entitle the plaintiffs to recover under the first count, and the second being to the same effect as to the second count. Having stated the two grounds for recovery relied on by the plaintiffs, we will consider them in the order they are presented in the declaration.

I. The evidence shows that Mr. Kemp was the owner of the horses and the vehicle, in which he and Mr. Mcllvain were riding. They had been taking a drive and were returning to the city of Baltimore by way of the Pimlico Road. Mr. Kemp drove until they reached a house on the roadside, known as “ Halstead’s,” where they determined to ³⁵⁰ stop. Before reaching Halstead’s, from the direction they were coming, the road on the right was made of soft dirt, the middle being macadamized, and there being an electric railway on the other side.

There was some difference of opinion between the witnesses as to the speed of the horses as they approached and drove into Halstead’s, but the evidence on the part of the plaintiffs was, for the most .part, to the effect that they were moving very rapidly — so much so that some of the witnesses thought that at least one of them was running as they turned into that place. The testimony of several was that Mr. Kemp, who was driving at the time, lost control of the horses and dropped one of the lines, and although that was denied by the appellees, who undertook to explain how one of the lines came off Mr. Kemp’s hands, it may well be conceded that if the injury complained of had happened as they approached or drove into Halstead’s, the alleged negligence of the appellees — certainly of Mr. Kemp — would necessarily have been a question for the consideration of the jury. For, although it is shown that it is customary for those driving fast or spirited horses to “speed” them on that dirt road, it is a part of the public road and if persons drive at such rate as the testimony shows these parties were driving on the road and as they went into Hal-stead’s, which is' a place of public resort, it would not have been within the province of the Court to say that there was no evidence of negligence, if a collision had occurred by reason of such fast driving at those points, as is disclosed by the record. But the accident did not happen there.

The appellees, after having had their horses taken in charge by the hostler, went into the house and remained there some time. Mr. Creamer said he and his wife remained there probably five minutes after the appellees arrived; that they then drove a short distance out the road when they turned and drove towards the city. Mr. Kemp testified they stayed there “some little time” before starting, and Mr. Mcllvain said he supposed it was ten or fifteen minutes. When they started Mr. Mcllvain' drove, accord ³⁵¹ ing to the evidence of Mr. Kemp and himself, because the former was not well and was suffering from a pain in his side.

After going down the road about a half mile one of the horses became frightened at an elecric car, which was making an unusual noise, and jumped against the other horse and the two started to run. When they were about three-quarters of a mile from Halstead’s they ran into the vehicle which the appellants were driving, which caused the injury complained of. From the time they left Halstead’s there is not a particle of evidence of negligence on their part. It is true that one of the witnesses for the plaintiff said, in speaking of their leaving Halstead’s, that “ They went off in a kind of a flurry.” Just what he meant by that is not very clear, but in speaking of the way they came .into Halstead’s the same witness said “they came in with a little flurry, that is, a little extra,” but he also said “ I don’t think they came at a very fast rate of speed; as far as the rate of speed they came in is concerned, they came in as a pair of spirited horses,” but his opinion was that they did not know “ how to handle horses.” Mr. Mcllvain said, “I drove from Halstead’s and they acted very gentle with me.” Although some of plaintiffs’ witnesses thought that the horses were not properly managed as they entered Halstead’s, the uncontradicted testimony shows that at that time Mr. Kemp was driving, whilst Mr. Mcllvain drove after they left that place and was driving when the accident happened.

Nor was it attempted to be denied that Mr, Mcllvain had been driving horses constantly for ten or twelve years, and had frequently driven those which caused this accident. No evidence was offered even tending to prove that either Mr. Kemp or Mr. Mcllvain was not a competent driver, excepting the opinions of some of the witnesses formed from the manner in which the horses were managed as Mr. Kemp drove into Halstead’s, and one of the plaintiffs’ witnesses said that he could not form an opinion as to whether a man is a careful and prudent driver by seeing him drive once. I3ut, if it be conceded that he was ³⁵² incompetent, there was no attempt to show that Mr. Mcllvain was and, as we have already said, there is no evidence of negligence after they left Halstead’s, where he commenced driving. We can therefore have no hesitation in reaching the conclusion that the Court was right in granting the defendants’ first prayer. 2.

The plaintiffs did not offer any evidence as to the proneness of the horses to run, excepting what occurred at Halstead’s, and the testimony of Mr. Kuhlman, who spoke of an alleged admission by Mr. Mcllvain, which we will refer to later on. When Mr. Kemp was on the stand, however, he said that “ on one occasion, not after they were broken horses, but when they were a pair of colts, not three years old (I had not had them in harness more than three times, I don’t think), I started out from the place with them, my sister being with me, and we were crossing over a bridge and that shook the pole and the yoke-strap broke and the pole dropped down and made the report of a pistol or a gun going off, naturally the colts took fright and ran “ that was between five and six years before the accident in question, after that I never had the slightest bit of trouble with them, they never showed an^ sign of fright or tried to run away up to the time of that accident.” It is contended that their running then was some evidence of their proneness to run off, but even if it be conceded that the mere fact that a horse has run away once may be some evidence of its disposition to run, if there be no explanation of the circumstances, the one occasion shown by the record is so fully explained that it is impossible to find, or even to infer, from that that there was any tendency in them to run. A colt that would not run under the circumstances described would be an exception. The testimony offered on the part of the defendant, which is uncontradicted, shows beyond all question that from that occasion until the day of the accident complained of they were gentle and easily managed.

A sister of Mr. Kemp had driven them since she was fifteen years of age, and although when in the city she usually had ³⁵³ a companion, which, to use her language, “ was simply a matter of taste with me that I did not drive alone in the city,” she did drive them alone or with a lady companion in the country. One witness, apparently experienced in the use of horses, spoke of them as “ perfectly gentle but spirited horses another who had driven them said “ there was not the slightest indication of their trying to run away;” another, who had ridden behind them a number of times, said: “They never showed any disposition whatever to run away or any signs of viciousness of any kind,” and still another testified “they were perfectly quiet and gentle. ” The record therefore not only fails to show any proneness in the horses to run, excepting on the one occasion spoken of when they were under three years of age, but there is abundant affirmative proof of a contrary disposition. If horses must be kept off the public