September 30, 1932.
November 23, 1932.
Negligence — Minor — Horse and wagon — Child playing in street — Untied and unattended horse — Injury to child — Burden of proof — Case for jury.
In an action of trespass to recover damages for personal injuries sustained by a minor, the evidence disclosed that the minor was standing in a street looking to the west and that the defendant's horse and wagon which was approaching from the east, stopped along the curb near the boy. The driver left the wagon to make a delivery of bread without hitching the horse and suddenly the latter started to move forward and struck the boy.
In such case the question of the negligence of the defendant's driver was for the jury and the judgment entered on a verdict for the plaintiffs will be sustained.
Leaving a horse unhitched and unattended upon a public street is prima facie negligence. When, under such circumstances, an injury is occasioned by reason of the fact that the horse was untied, the owner or driver of the horse has put upon him the burden of justifying the act. Whether the burden has been met is a question of fact for the jury.
Appeal No. 184, October T., 1932, by defendant from judgment of C.P., No. 3, Philadelphia County, March T., 1930, No. 13757, in the case of Harry Ross by his father, Edgar H. Ross, and his mother, Helen G. Ross, as next friends, and Edgar H. Ross and Helen G. Ross in their own right v. Freihofer Baking Company, a corporation.
Before TREXLER, P.J., KELLER, GAWTHROP, CUNNINGHAM, BALDRIGE, STADTFELD and PARKER, JJ. Affirmed.
Trespass to recover damages for personal injuries. Before DAVIS, J.
The facts are stated in the opinion of the Superior Court.
Verdict of Harry Ross in the sum of $1,000 and for Edgar Ross in the sum of $90 and judgments entered thereon. Defendant appealed.
Error assigned, among others, was refusal of defendant's motion for judgment non obstante veredicto.
Ward C. Henry, for appellant.
Edwin J. McDermott, and with him William Charles Brown, for appellee.
Argued September 30, 1932.
This is a case involving recovery of damages sustained by a minor six years old, who was playing on a street in the City of Philadelphia. He was standing in the middle of the street looking at a kite, which he was engaged in flying at the time; the kite being in the sky to the west. The defendant's horse drawing a bread wagon was driven along the street from the east and was stopped along the north curb, back of the boy. The driver left the horse and wagon, and went up the steps of a house to deliver bread; the horse was not hitched, nor was there any device to restrain his movements. Without any apparent cause the horse started to move forward and struck the boy who was standing in the street with his back to the horse, and knocked the boy down and injured him. The horse continued at a trot down the street to the corner where he was secured. There is no definite evidence as to how fast the horse was going when he struck the boy. After the horse started, one of the boy's playmates cried out a warning to him, but before the boy had a chance to act on it and to get out of the way he was knocked down by the horse. The jury found for the plaintiffs. The only assignment is the refusal of the court to enter judgment n.o.v.
There are a number of decisions which hold that to leave a horse unhitched and unattended upon a public street is prima facie negligence. When under such circumstances an injury is occasioned by reason of the fact that the horse was untied, the owner or driver of the horse has put upon him the burden of justifying the act, and whether the burden has been met is for the jury, but the presumption of fact and the mere element in the case that the horse was unhitched does not require the court to instruct the jury to turn in a verdict for the plaintiff. See Supplee-Wills-Jones Milk Co. v. Southern Penna. Tr. Co., 98 Pa. Super. 550; Quicksall v. Abbotts Alderney Dairies, 89 Pa. Super. 420, 422; Barshay v. American Ice Co., 84 Pa. Super. 538, 540; Weikel v. Pullman Taxi Co., 59 Pa. Super. 595, 597; Jordan v. Eisele, 273 Pa. 95, and Stevenson v. U.S. Express Co., 221 Pa. 59, 61.
The learned court in a fair charge submitted the case to a jury and instructed them in accord with the authorities above referred to and no complaint is now made in this regard. We are all of the opinion that the matters involved were entirely for the jury and that the judgment should be affirmed.