Turner v. Page

72 N.E. 329, 186 Mass. 600, 1904 Mass. LEXIS 1029

• Court: Massachusetts Supreme Judicial Court
• Decided: November 21, 1904
• Status: Published

Opinion

Loring, J.

1. The difficulty with the defendant’s ai’gument in support of his exception to the refusal to give the fifth ruling asked for and to so much of the charge as is inconsistent with it' is that what is complained of in the argument is not the refusal of what was asked for in the ruling. The complaint made by the defendant in his argument is that the judge did not tell the jury to consider the previous habits of the horses in passing on the question of the driver’s negligence. What the defendant asked for in this ruling was that if the jury believed the testimony as to their previous habits the plaintiff could not recover.

2. The difficulty with his argument in support of his exception to the refusal to give the fourth ruling asked for lies in the assumption that the persons who attempt to stop runaway horses will in fact act as the typical prudent man would act. We are of opinion on the contrary that among the natural and probable consequences of negligently letting a pair of horses run away it is competent to find that they will swerve to one side or the other on account of the acts of persons who try to stop them in a way which would not have been adopted by a prudent man, including waving a rake and hitting one of the horses over the head with it. The case comes within Lane v. Atlantic Works, 111 Mass. 136; Koplan v. Boston Gas Light Co. 177 Mass. 15; Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232; Murray v. Boston Ice Co. 180 Mass. 165; see also Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 48 (where the earlier-cases are collected); and does not come within Stone v. Boston & Albany Railroad, 171 Mass. 536; Glynn v. Central Railroad, 175 Mass. 510; Glassey v. Worcester Consolidated Street Railway, 185 Mass. 315. See also Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49.

Exceptions overruled.