Buckley v. Earle & Prew's Express Co.

48 A. 7, 22 R.I. 358, 1901 R.I. LEXIS 17

Opinion

Per Curiam.

The defendants claimed at the trial that testimony that the horse in question had walked away on a previous occasion, when left in the street unattended, was irrelevant, and they excepted to the refusal of the judge so to charge. Assuming it to be irrelevant, the court is of opinion that it was not prejudicial.

(1) The declaration charged that the horse was accustomed to run away, and that the defendant knew it. The evidence of admissions by Mr. Prew as to the character of the horse, the testimony of a previous driver as to the horse taking the bits between his teeth and starting to run, coupled with the testimony of the conduct of the horse on the day in question, were sufficient to warrant the jury to believe that the horse had the propensity to run.

The testimony objected to was not testimony which would be likely to prejudice a jury against the character of a party and so lead them to discredit him, as in State v. Briggs, 9 R. I. 361; Graham v. Coupe, 9 R. I. 478; Tourgee v. Rose, 19 R. I. 432 ; or as to the conduct of the defendant in King v. Colvin, 11 R. I. 582.

John M. Brennan, for plaintiff. Comstock & Gardner and Livingston Ham, for defendants.

This being an action for negligence, the jury must have found, to find for the plaintiff at all, that the defendant had knowledge of the habits of the horse ; and we cannot suppose, in view of the evident difference in circumstances, that evidence that a horse not hitched or attended walked off could have led a jury to believe that it ran away in this case from habit.

We do not think that the testimony was injurious or prejudicial, and the motion for a re-argument is denied.