Chase v. Boody

55 N.H. 574, 1875 N.H. LEXIS 133

• Court: Supreme Court of New Hampshire
• Decided: August 12, 1875
• Status: Published

Opinions

Bailment for hire — Degree of care. This was a bailment for hire, and the plaintiff was bound to use ordinary diligence and care in the protection of the property hired. What ordinary diligence is, varies in degree according to the nature of the property and the circumstances of each particular case. It means "that degree of care, attention, and exertion, which, under the circumstances, a man of ordinary prudence and discretion would exercise, in reference to the particular thing, were it his own; or which the generality of mankind use in keeping their own goods of the same kind." 2 Hill. on Torts, ch. 29, sec. 8, p. 610, citing Mayor, c., v. Howard, 6 Geo. 213.

The judge, who tried the cause without a jury, has reported the facts found; and the question transferred is, whether, upon the facts reported, the defendant used ordinary care and diligence in the care of the plaintiff's horse. It appears that, on the morning of the day the horse was injured, he was properly fed and watered at a seasonable hour by the defendant, and was left in a suitable place; that the defendant went away, giving no directions to any one to care for the horse, expecting to return in season to attend to it himself, which he in fact did; that he knew the boy was at home, but he informed no one when he should return, or that he should return in season to attend to the horse himself; that the boy's interference with the horse was with no malicious intent, and was, under the circumstances, natural, and what it would be reasonable to apprehend he would do; that it was negligence to let the horse loose in the manner in which it was let loose; and that this negligence caused the injury complained of. Under this state of facts, it cannot be said that the defendant did not exercise the same degree of care which might be expected from a prudent man towards his own horse. What he had reason to apprehend was, that the boy might attempt to water the horse, not that the boy would turn him loose, and the horse thereby become injured. If the defendant had had reason to apprehend that the boy would turn the horse loose, and that the horse would become injured in consequence thereof, a different question would be presented for our consideration. The case, however, only finds that he had reason to apprehend that the boy would attempt to water the horse, and that affords no evidence of lack of ordinary care and prudence.

There is another ground upon which the verdict must be set aside. The plaintiff was permitted to introduce evidence tending to show that the boy had been accustomed to care for horses put up at that place. The defendant then offered to prove the custom of taking care of horses at that place, but the evidence was excluded. If the plaintiff seeks to make the defendant liable for the act of the boy because he was accustomed to care for horses at that barn, the defendant should have been permitted to show what that custom was. The plaintiff having shown the custom in part, the defendant was entitled to show the whole of it.