SUPREME COURT.

Dominion, Volume 1, Issue 183, 28 April 1908, Page 4

SUPREME COURT.

V CIYIL, SITTINGS

HORSE DASHES.INTO AiSHOP,

1 j LIAIiILITY. FOR :THE DAMAGE. . ' Mr. Justico Chapman yesterday delivered 'IfcfferVod- judgment in tho ; casei between. Halleiistoin Brothers,-Ltd:' (appellants):. and Thomas' Dwyer' l (respondent)/' an -appeal on' facts and law fromla'decision of the Stipon-: diary Magistrate,at! M'astertoii, who held-, that under ;thb circumstances' respondent was s not.'liable",'to pay"; £52 10s. .claimed by ap-; pellaiits'-.in< respect of damigoi donevas a 're-'' suit i of/ a .' maro - belonging.;,to. diim." dashing -, into their shop.' -■ vsv-w:".';/.'.-His Honour stated that. at . the time the. animal'became frightened arid'bolted it was ■ staiiding" : iu ' l respondent's yard, access 'to which, wa6 'igaincd by, a v lane... Neither the entrance from the lane to tho yard nor that from'-' the ■' street' was provided witlr Agates; % mail liamed ;'o!Neillvwas;;waiting : in 'the • yard for respondent" to'harness the ' mara inorder t tliat'.'ho" might .'take it to' the .' Car-' te'rton show. O'Neill was■: interested in' this, as if the mare won the competition for which it. was . entered-ho, was to have half the proceeds. - Ho 'was not - otherwise'in. respondent's' employ.' : ' A man named Jones •drove : a - two-horse. wagon up thelane and came into the ,'ya'rd: in order' to; turn it. Whon this occurred tho mare bolted out of tha yard,' knocking- respondent down and' dragging him somo distance, and then .bolted: •dewn the, street, h dashing sinto .appellant's' shop. . '■■■: .The appellants'-.: case, was, j.that tho proximate 1 cause of the damage was the failure of ; the respondent ■' to take i proper care in the management of the mare jwhich appel-' lant alleged was likely to become frightened. ■The -..respondent's - ease '..was : - that ' tho .-mare was; perfectly, docijo,; that. Jones-was a mere' trespasser, ■ and that .the .intrusion < brought aboutrtho result complained- of. . - ; • His Honour, continuing, said the eyidehco | as to whether Jones had permission to take • his team . into, respondent's yard was ; con- , tradictory. Jones .noticed a* bucket j standing in the yard in the way of Jiis horses, and he called .upon 0 -Neill to remove it. 0 Neill threw the in the bucket on the backs of'tha - wagon horses or.one of them.' The' Court was of opinion that tho throwing of, Ithe .water-, was tho. proximato cause , of the maro bolting. - It did not see any reason to suppose' that the mere fact that 'Jones drove into tho yard was the cause of .the occurrence, or that it would have caused the mare' to bolt apart from O'Neill's act. On these conclusions two questions- naturally • arpsoY First, '. whether the respondent was answerable for O'Neill's act, and secondly, whether |thero proof , of . negligence in the mode Sn .which .the mare was dealt with. In .the opinion of the' Court O'Neill was not in respondent's service, and' as he had no , duties in the yard until the maro was harnessed the respondent could not be held • re-' sponsible for his act. Discussing whether;, there, was want of care on the part of the respondent, His Honour that had he come to the conclusion that tho mere intrusion of Jones, invited or uninvited,' had caused the maro to bolt, lie should have thought that' the respondent was liable. In considering' the Question of responsibility whero there was an intor'veriing' 'cause, tho Court 'would havo been inclined to say that the respondent would have been liable; not merely for the direct consequoiico of Jones's invasion of tho yard, but for the consequences of acts such as tho sudden appearance of boys and other 'irresponsible agencies doing what might properly bo termed .unexpected acts. The act of O'Neill was, however, of a different character. It was the case of a responsible actor perpetrating, a paltry ! practical joke. If O'Neill had 1 been sued ho could not have set-up either respondent's negligoncc or Jones's trespass as a defence on the ground that either of them was tho proxiiriato causo of appellants' loss. Tho-, consequences ; which, followed ftom tho totally unexpected and capricious act of O'Neill were something which the respondent was,'not bound to : anticipate, and 'in'failing to anticipate which ho was guilty of no -breach, of duty.' Tho fact that when' :it dashbd into tho window the maro boos,mo a trespasser did not make any - differ*

once. Tho judgment of the Magistrate, which was in favour of tho respondent, would be affirmed, with' costs totalling eight guineas. . . • Mr. Rollings appeared on behalf of appellants and Mr. Hordmau for respondent.