Connell v. Putnam

58 N.H. 335

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1878
• Status: Published

Opinion

Allen, J.

The amendment does not change the form nor destroy the identity of the cause of action. The original count involved negligence. A wrongful keeping of a vicious animal is a negligent keeping. Keeping it with that degree of care which would exclude legal liability, would not be wrongful; and that want of care which would make the keeping injurious to another, would bo negligence as well as a wrong. The original count charged negligence in keeping a vicious horse. The amended count made negligence, in permitting a horse to go at largo without a keeper, the gist of the action. Both counts set up negligence as the gravamen, but each states the particulars of the injury differently. The vice of the animal is omitted in the second count, but it is the same boy, receiving the same kick and consequent injury from the same horse, and all through the negligence of the owner. The amendment introduced no new cause of action, but was necessary to obviate a variance between the proof and some of the particulars of the declaration, and was properly allowed. Stevenson v. Mudgett, 10 N. H. 338, 340; Barrett v. Salisbury Manf. Co., 28 N. H. 440, 452; Davis v. Hill, 41 N. H. 336; Bailey v. Smith, 43 N. H. 409; Taylor v. Dustin, 43 N. H. 493; Stearns v. Wright, 50 N. H. 293; Cahill v. Terrio, 55 N. H. 571; Gilman v. Cate, 56 N. H. 160, 165, 166; Burnham v. Plant, 57 N. H. 41.

Exception overruled.

Bingham, J., did not sit.