By the Court, Hand, J.
One of my associates has passed upon this cause at the circuit, and the other at special term, on a motion for a new trial, and I concur with them in denying it. There was evidence for the consideration of the jury, and consequently the nonsuit was properly denied. But the defendant complains that the judge refused to charge the jury that if the plaintiff, by his manner of driving his own team had so irritated the defendant’s horse that he had become uncontrollable, he was not entitled to recover. The judge refused so to charge, because he thought there was not evidence that would warrant that belief. The defendant was correct in this legal proposition, particularly if such acts of the plaintiff were either negligent or wilful. But was this law applicable to the case, upon the proofs ? The defendant relies upon the testimony of the witness Palmer. But I think that testimony not sufficient. The defendant left Palmer nearly 1-| miles from the place of the disaster, and at a place at which he himself stopped twenty minutes. If any thing [97] was done by the plaintiff, in this respect, it was previous to this time. There is no proof that he did any thing whatever, after that, calculated to disturb the defendant’s horse. If the jury had found for the defendant on this point as a question of fact, it would have been without evidence. Besides, he had already told the jury that if the injury he had received was in any degree owing to Ms own negligence, the plaintiff could not recover.
He also refused to charge the jury, that if they believed the plaintiff might have avoided the accident by turnmg out of the road where it happened, and neglected to do so, he could not recover. TMs.he refused to do, because he thought the point did not arise upon the facts proved. There is no proof that the plaintiff was negligent in this particular. It is doubtful whether he was aware of the proximity of the defendant, though one witness says he looked around some time before, and when the defendant was some eleven rods distant; and he could not know that the latter would turn a corner after him, instead of keeping in the straight road. Indeed, if the judge meant to lay down the law in the broadest sense of the language he used, I think he should have qualified it in favor of the plaintiff. The English rule clearly is, that the plaintiff may recover, if he could not have avoided the consequences of the defendant’s negligence by the use of ordinary care. (Davies v. Mann, 10 M. & Wels. 546. Bridge v. Grand Junc. Railroad Co. 3 Id. 246. Butterfield v. Forrester, 11 East, 60. Thorogood v. Bryan, 8 M., Gr. & Sc. 115. Catlin v. Hills, Id. 123. Clayards v. Dethick, 12 Q. B. 439.) If ordinary diligence by the plaintiff will not prevent the injury, he is not considered in any degree the author of the wrong. This seems to be the equitable rule in relation to mutual negligence. It accords too with the principle, that one is nbt to be indifferent and reckless because another has done him an injury, but must exercise reasonable diligence to prevent damage. (Sedgwick on Dam. 98. Walters v. Pfiel, 1 Mees. & W. 364, and notes.) Perhaps the language of some of the judges in this state and in England may seem to go farther. (Brown v. Maxwell, 6 Hill, 592. Brownell v. Flagler, 5 Id. 282. Rathbun v. Payne, 19 Wend. 399. [98] Spencer v. The Utica and Schenectady Railroad Co. 5 Barb. 337. Tonawanda Railroad Co. v. Munger, 5 Denio, 255; /S. C. 4 Comst. 349. Hartfield v. Roper, 21 Wend. 615. Puckwell v. Willson, 5 C. & P. 493. Williams v. Holland, 6 id 23. Hawkins v. Cooper, & Id. 473.)
But these English cases were at nisi prius, and, on examination of the decisions in this state, I doubt whether one of them will be found to have been actually decided contrary to the English rule. And indeed the principle is the same; for if the plaintiff uses ordinary care, he does not inlaw contribute to the injury.
The only remaining point worthy of consideration is that in relation to the inability of the defendant to control his own horse. The proposition is that if the jury believed the horse had become unmanageable, so that the defendant could not control him, without any misconduct on his part, they should find for the defendant.
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By the Court, Hand, J.
One of my associates has passed upon this cause at the circuit, and the other at special term, on a motion for a new trial, and I concur with them in denying it. There was evidence for the consideration of the jury, and consequently the nonsuit was properly denied. But the defendant complains that the judge refused to charge the jury that if the plaintiff, by his manner of driving his own team had so irritated the defendant’s horse that he had become uncontrollable, he was not entitled to recover. The judge refused so to charge, because he thought there was not evidence that would warrant that belief. The defendant was correct in this legal proposition, particularly if such acts of the plaintiff were either negligent or wilful. But was this law applicable to the case, upon the proofs ? The defendant relies upon the testimony of the witness Palmer. But I think that testimony not sufficient. The defendant left Palmer nearly 1-| miles from the place of the disaster, and at a place at which he himself stopped twenty minutes. If any thing [97] was done by the plaintiff, in this respect, it was previous to this time. There is no proof that he did any thing whatever, after that, calculated to disturb the defendant’s horse. If the jury had found for the defendant on this point as a question of fact, it would have been without evidence. Besides, he had already told the jury that if the injury he had received was in any degree owing to Ms own negligence, the plaintiff could not recover.
He also refused to charge the jury, that if they believed the plaintiff might have avoided the accident by turnmg out of the road where it happened, and neglected to do so, he could not recover. TMs.he refused to do, because he thought the point did not arise upon the facts proved. There is no proof that the plaintiff was negligent in this particular. It is doubtful whether he was aware of the proximity of the defendant, though one witness says he looked around some time before, and when the defendant was some eleven rods distant; and he could not know that the latter would turn a corner after him, instead of keeping in the straight road. Indeed, if the judge meant to lay down the law in the broadest sense of the language he used, I think he should have qualified it in favor of the plaintiff. The English rule clearly is, that the plaintiff may recover, if he could not have avoided the consequences of the defendant’s negligence by the use of ordinary care. (Davies v. Mann, 10 M. & Wels. 546. Bridge v. Grand Junc. Railroad Co. 3 Id. 246. Butterfield v. Forrester, 11 East, 60. Thorogood v. Bryan, 8 M., Gr. & Sc. 115. Catlin v. Hills, Id. 123. Clayards v. Dethick, 12 Q. B. 439.) If ordinary diligence by the plaintiff will not prevent the injury, he is not considered in any degree the author of the wrong. This seems to be the equitable rule in relation to mutual negligence. It accords too with the principle, that one is nbt to be indifferent and reckless because another has done him an injury, but must exercise reasonable diligence to prevent damage. (Sedgwick on Dam. 98. Walters v. Pfiel, 1 Mees. & W. 364, and notes.) Perhaps the language of some of the judges in this state and in England may seem to go farther. (Brown v. Maxwell, 6 Hill, 592. Brownell v. Flagler, 5 Id. 282. Rathbun v. Payne, 19 Wend. 399. [98] Spencer v. The Utica and Schenectady Railroad Co. 5 Barb. 337. Tonawanda Railroad Co. v. Munger, 5 Denio, 255; /S. C. 4 Comst. 349. Hartfield v. Roper, 21 Wend. 615. Puckwell v. Willson, 5 C. & P. 493. Williams v. Holland, 6 id 23. Hawkins v. Cooper, & Id. 473.)
But these English cases were at nisi prius, and, on examination of the decisions in this state, I doubt whether one of them will be found to have been actually decided contrary to the English rule. And indeed the principle is the same; for if the plaintiff uses ordinary care, he does not inlaw contribute to the injury.
The only remaining point worthy of consideration is that in relation to the inability of the defendant to control his own horse. The proposition is that if the jury believed the horse had become unmanageable, so that the defendant could not control him, without any misconduct on his part, they should find for the defendant.
If the accident happened entirely without the fault of the defendant, an action will not lie; though it would seem that only the act of God excuses a common carrier—something more, perhaps, than unavoidable accident, in. the common acceptation of that term—an act in no way depending upon human agency. (McArthur v. Sears, 21 Wend. 190.) In Wakeman v. Robison, (1 Bing. 213,) and Dygert v. Bradley, (8 Wend. 473,) cited by defendant, while the court admitted that unavoidable accident was a defense, they denied the application of the principle in those cases. In the first case the defendant rode a young and spirited horse without a curb chain, and pulled the wrong rein: and in the other, although the jury found for the defendant on a charge that he' was not liable if the injury happened by mere accident, &c. the court granted a new trial, on the ground that he was bound to know, under the circumstances, that his boat could not pass without hazard. The court, in each of these cases, looked into the evidence to see if the question of unavoidable accident arose. Adopting the same rule here, this point will not avail the defendant. From Palmer’s testimony it seems the horse was restive before the defendant stopped, which was between one and two miles back. After the lapse of twenty [99] minutes he started again. The evidence is that when the horse approached the plaintiff he was running, jumping, rearing, pitching, kicking and acting very badly, and was so when within 10 or 12 rods of the plaintiff; notwithstanding which the defendant whipt him while still running, and then pulled upon the' reins; arid ran him first against the plaintiff’s wagon wheel, and again against the middle of his wagon; and all the disastrous consequences followed. One witness testified that the defendant said he ran against the plaintiff to stop his horse, and had whipt him before. But waiving that evidence as matter for the jury, and taking the relation given by all that saw the transaction, there is nothing like that unavoidable accident that excuses the act. The proof shows that the horse behaved viciously before the defendant whipt him, and was restive. And the defendant proves that was the case before he stopped. To start in 20 minutes after with siicli a beast, and directly after the plaintiff, and whip the horse under full speed, when the plaintiff was but a few rods ahead, was hazardous if not reckless. The defendant has not shown why he did not keep straight on, in the direct road, by which the collision would have been avoided; instead of turning, when within six rods of the plaintiff, and following him in a road too narrow to pass. The law in relation to inevitable accident is not applicable to such a case. The rule was laid down two hundred years since, that the accident must be inevitable and the defendant without negligence. (Weare v. Otard, Hob. 134.) It must be wholly unavoidable, and no blame imputable to the defendant. (See Wakeman v. Robison, 1 Bing. 213; Dygert v. Bradley, 8 Wend. 472; Goodman v. Taylor, 5 C. & P. 320; Gibbons v. Pepper, 4 Mod. 405; Vincent v. Stinehour, 7 Verm. Rep. 64.)
[Franklin General Term,
July 5, 1852.
Willard, Hand and Cady, Justices.]
Judgment affirmed.