HALLENSTEIN BROS. V. THOS. DWYER.

Wairarapa Daily Times, Volume LVIII, Issue 8941, 16 December 1907, Page 5

HALLENSTEIN BROS. V. THOS. DWYER.

JUDGMENT FOR DEFENDANT

Mr W. P. James, S. M., gave judgment this afternoon iv the case Halleusteiu Bros. v. Thos Dwyer, in which plaintiffs claimed the sum of £52 10s for damage to their shop premises, goods and fixtures by defendant's horse bolting and entering the plateglass window. The Magistrate in his judgment says:— '' The facts as proved are as follows : —On the 21st November, 15)07, the defendant was harnessing his horse on his own premises, at tho back of his garage in Quoeu-street. Whilo so ongaged a man named Jones driving two horses attached to a waggon drove along a right-of-way between Dalgety and Go's, store aud defendant's garage. At tho end of his right-of-way is a space for turning vehicles in; and au opening unfoucod. but across which from timo to time, dofeudaut has placed a wire to keep vehicles out, leading iv to defendant's back premises. This opening lias ofteu been used agaiust the wish of defendant by waggoners to turn their horses aud waggons iv, iustead of confining themselves to the space in Dalgety's yard. When tho man Jones was approaching ou this occasion, he was told by defendant aud his mau Cross not to come iuto defendant's yard. The man Jones aud a witness who was ou the waggou with him says that Dwyer, the defendant, gave them permission to come. Jones says he refused at first, but afterwards consented. The other wituoss says he consented at once. I am satisfied, from tho evidence of other witnesses, that cousout was not given. Jones, according to tho evidence, stopped at tho end of the right-of-way, and then suddenly started to drive' upon defendant's premises, which was a small square. Defendant at this time had hold of his horse by the winkers or bridle; holding his nose strap; the reins wero not attached to the bit. Defendaut says lie was just commencing to fasten them on preparatory to puttiug the horse in a trap, which was between the opening and the horse, and before he was aware of it, the waggou aud horses, just escaping the vehicle, passed close to the horse, aud the waggon actually knocked it ou the flank, causing the horse to become suddenly frighteued. It plunged aud dragged defendant some yards, kuocked him down and tore Ins clothes, aud got away into the street. It weut down Queenstreet, aud at the corner of Church and Queeu-streets smashed through the window of plaintiffs' shop, aud came out agaiu, thereby doing the injury complained of. With regard tv the first portion of the claim formed ou negligence, I must hold that no proof of negligence has been made out by plaintiff. Ido uot consider that if a porsou is holding a horse by tho bridle iv his backyard, aud a trespasser suddenly strikes .the horse, causing it to bolt that the owner of the horse can bo said to bo negligent. One witness, aud a persou experienced iv haudliug all sorts of horses (O'Neill), says that if there had been ten ropes on tho horse the defondaut could not have prevented the horse from breaking away. It was contended by plaintiffs' counsel that the defendant should have had Ins yard fenced in. That might be so if he had been in the habit of keeping the horse there, but this was the first time the horse had been iv the yard, aud was ouly takeu there ou this occasion because the harness was there for the purpose of being cleaned at the garage. I do not think there was anything unreasonable in harnessing the horse in the way it was harnessed, or in such a place. The animal was being held, and was perfectly under control until it was struck. With reference to paragraph No. 4 of statement of claim that the horse was a dangerous animal, having bolted ou a former occasion to the knowledge of the defendant :— I do not consider that anything m the nature of "scienter" has been proved. The circumstances of the bolt referred to were stated by the witness Cress to be be these. He was driving towards Opaki oue wet aud windy day when he suddenly came upon two men on the side of the road with bicycles aud their swags; the horse shied suddenly and went on its knees, the driver being thus thrown out of the trap; the horse then made for its home in Masterton, being driver less, and in turning a corner in Mastertou, slipped on the pavement. No damage was done aud his journey was resumed. This is not sufficient "scienter" to cause the animal to come uuder tho definition of mischievous or vicious, aud requiring the owner to keep it safely at his peril and apart from any question of negligence. With regard to that part of the claim dealing with trespass, the result of the authorities is stated to be "that in the case of animals trespassing on land, the mere act of the animal belonging to a mau, which he could not foresee, or which he with unreasonable means of preventing may be a trespass, inasmuch as the same act, if done by himself, would have beeu a trespass.'' That statement of law practically makes the owner of an animal an insurer against injury by his cattle even without negligence. Although a person does what is apparently au unjustifiable injury to another's property he may find an excuse for it by showing it was the result of an unavoidable accident. If a person is walking along the street and accidentally slips and falls against ancl breaks a window, although it would be a trespass, he is not liable for the damage done. In the present case, so far as the defendant is concerned, it was au inevitable accident. The defendant could not have prevented it by the exercise of ordinary care and caution. The plaintiff laid great stress on the case of Ryland v. Fletcher. "The rule laid down in that case was that the person who, for his own purposes, brings on his land and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape, whether the thing so brought be beasts or water or filth or stenches." As laying down a positive rule of law, it is stated:" The decision in Rylands v. Fletcher is not open to criticism in this country. But in the judgment of the Exchequer Chamber itself, the possibility of exceptions is suggested, and we shall see that the tendency of later decisions has been rather to encourage the discovery of exceptions than otherwise. A rule casting the