Overington v. Dunn

1 Miles 39

Opinion

The opinion of the Court was delivered by

Jones, J.

Negligence, in the sense of the law, can occur only in cases where there is a legal obligation to observe care : it is the omission of that degree of care which the law requires. If no care be taken, where the law requires it, the negligence is gross. If some care be taken, but less than the law requires, the negligence is greater or less according to the degree of deviation.

It is sometimes supposed, that where little or no danger is apprehended from the omission of care, the obligation to use it is proportionally less, or does not exist at all; and such appear to be the views of the defendant in this case. But this idea confounds the fact of negligence with the danger or risk attending it. They are however entirely distinct ; cause and effect are not more so. A grossly negligent act (as the law would denominate it) may be attended, in fact, with very slight risk ; and an act perfectly proper, and performed with extraordinary care, may, from causes not foreseen, and for which the agent may not be responsible, be followed by disastrous results.

The rule requiring care, as applied to this case, assumes as its basis, that the defendant’s horse had been trained so as to be obedient to the customary means of restraint. The evidence shows that such was the fact,: and if the defendant had made use of those means when he left his horse, he would not have been responsible, although his horse had broken loose and afterwards caused the injury complained of. If, however, his horse had been imperfectly trained, or was vicious or unmanageable, he would not have been entitled to invoke the benefit of this rule. Such was the case of Michael v. Alestree, in 2 Lev. 172, cited by the defendant’s counsel. In that case, the defendant had brought a coach, “with two unmanageable horses, into a place where the people were always going to and fro, and there drove them to make them tractable for a coach; and the horses not being to be managed, ran upon the plaintiff.” It is obvious that the qualities of the animals were referred to ia that case, not for the purpose of diminishing the degree of care required by the law of persons using horses, but to show that no degree of care would excuse the act. To make that case an authority for the defendant’s argument, it should prove that ordinary care only is required in the use of ferocious and unmanageable animals; then he might, consistently with the case, infer from it that less than ordinary care, or no care at all, is required in the use of horses extremely well broken, and accustomed to stand without being secured in the ordinary way. But a case which should support such a proposition would be entitled to no respect.

In this case there was no evidence of any care used by the defendant to restrain his horse at the time he left him. Oa the contrary, it is express, that he left his horse at large. In the eye of the law his negligence was gross; it could not be greater. He, no doubt, thought that there was no risk attending this neglect. It may be conceded that most persons, as his counsel has asserted, would have done as the defendant did; but the event proved that it was unsafe. It was an error of judgment, and the law makes him responsible for the consequences. We are of opinion that the charge of the judge was substantially correct.

Rule discharged.