Scottish Court of Session Decisions

At advising—

Lord Young—I think it a pity this was not settled, but that has not been done, and we are now to determine whether the Sheriff-Substitute was right. I am of opinion that he was not. I think it is not according to the implied condition of the contract on which this horse was hired that the defender should open a gate and gallop the horse in a field. That that is often done is very probable, though we have no evidence on the subject. People are willing to run risks, and if no harm ensues, no question arises. If, then, the defender did this thing, which I think is not within the contract, and harm comes of it—if he takes the horse into the field sound and brings it out with a broken pastern—he is prima facie liable. We have not here to consider a case in which it is established that an irregularity not of a dangerous character has been committed, e.g., that the field was safer than the road, or just as safe, and that therefore there was no connection between the accident and the irregularity. I think that since here the customer galloped the horse in the field to the horse's destruction, as it turned out, and that it lies on him to disprove the case for the pursuer, which is prima facie established by proving the irregularity and the consequent splitting of the horse's pastern bone, there is nothing in the Sheriff-Substitute's observation that the same calamity did not befall the other horse which was treated in the same way. What happened or did not happen to the other horse is immaterial. If twenty horses had galloped through the field, their pastern bones would certainly not have been broken. So, in a question between the horse-hirer and the customer who was riding the horse which had this bone broken, that has no bearing at all. Since, then, there is this prima facie liability, the question of damages remains. I am perplexed again by the remark of the Sheriff-Substitute that the claim of the pursuer is one and indivisible, and so that however wrong and actionable the conduct of the defender may have been, yet this action is not maintainable unless the death of the horse be held directly attributable to that wrong. That seems to mean that if you injure a horse never so grievously, you shall not, in a common action of damages such as this, for loss sustained “through the defender's reckless, violent, and wrongful or illegal usage” of the mare, recover anything unless death be shown to have resulted from the injury. That is an unfounded idea. Death may not be the result of the injury, and yet the action may be quite good. But I am not satisfied that death was not the consequence of the injury in a sense sufficient to make the defender responsible for the value of the horse at the time the injury was received. This horse by reason of the split pastern was laid up and incapable of exercise. It is not doubtful that such a horse was more likely to'take inflammation of the bowels, and would be a worse patient if she took it. There was no certainty of such inflammation, and there is no absolute certainty that though it did occur that was attributable to the injury. But there is a probability that the inflammation resulted from the injury, arising from the greater liability of a horse in that condition to take a complication and die than not. This horse took this disease and died, and I am not prepared to say that the defender by using the horse otherwise than the implied conditions of the contract allowed, and so causing the split bone, did not make himself liable for the animal's death. I think he is. Speaking with relation to the value of the horse, I hold he did it a great injury irrespective of the question as to its death. The pursuer is, I think, entitled to the value of the horse, and I should put that value at what he paid for it. I think we ought to find that the horse was severely injured through the fault of the defender, and assess the damages at £27.

Lord Gifford—In such a case I am most unwilling to dissent, but I really am not able to concur in the judgment proposed. I doubt if culpa accounting for the injury or causing the damage has been shown. If there was any culpa, it was certainly culpa levissima or levis culpa at the most. The field appeared reasonably safe, and there was no apparent danger. We have nothing to do with trespass, and we are not in any question with the owner of the field or with the farmer complaining of trespass. Suppose the field had been a friend's field, and the defender had gone in to have a canter on the grass in a smooth and perfectly safe paddock, that surely, if culpa at all, would have been culpa levissima, and we have no evidence of the nature of the field, whether it was safe or not. Not a question is put on this subject, and no cross questions, and the reason is obvious. The only case stated against the defender is, not that he went to a dangerous place, but only that he rode in a violent and reckless manner. This is the only charge he had to meet, and so the evidence is confined to that point alone. The defender had frankly gone to the pursuer and told all that had happened. The pursuer knew where the field was or might have known. If it had been part of the pursuer's case that the field in which the defender took his canter was a dangerous field—a field into which by reason of its condition the defender had no right to go—I think he would have stated in his condescendence, and would have been bound to state, that fact, and that that was a fact which he relied on, and he has not done so. I am therefore inclined to hold that the defender went into a place quite suitable and safe for his purpose. It would be hard to say that a man may not ride or canter on grass when he hires a horse for a pleasure ride. Even Seton himself does not say that. It is “reckless galloping” he complains of.

But, again, assuming that there is culpa, I am not satisfied that the value of the horse is the measure of damages. No doubt the horse died, and so the pursuer claims its value. But was its death caused by anything that the pursuer did? I think not. I think it sufficiently appears that the injury to the pastern of the horse was the cause of the inflammation that led to its death. That might be a thing more or less likely, but there is certainly evidence that the death arose from a twist of the colon or intestine, occasioned by the animal rolling in its stall, but this was after its pastern was better. There is no necessary connection between the broken pastern and the twisted or knotted colon and the resulting inflammation; it is only proved that the inflammation is likely to be aggravated when the horse is kept tied up in its stall. But at all events a twist in the bowel seems from the post-mortem examination to have been the cause of death, and how we are to hold this gentleman liable for that I cannot see. I think he made a fair offer to pay for all the damage which happened to the animal when in his hands, and on the whole I incline to the judgment of the Sheriff.

Lord Justice-Clerk—This is a narrow case, but I confess that my impression has all along been in favour of the view of the case which Lord Young has adopted, and that because the defender acted in breach of an implied condition of the contract in going into the field and there galloping the horse. There is unfortunately no evidence as to whether that is a custom of those who hire horses or not, but at all events the man who let out this horse says that he never would have let it out at the rate he did for such a purpose. I think it common sense to hold that if the defender used the horse for such a purpose, and harm followed it, he is responsible for his deviation from the implied conditions of his contract.

When that conclusion is reached, I have no difficulty in following Lord Young to the further conclusion, that while it is not absolutely certain that the inflammation of the bowels was the result of the injury, it was in all probability the result—a rather consequential one no doubt, but still the result.

On the whole matter I concur with Lord Young.

The Court sustained the appeal, found the appellant entitled to damages, and assessed the same at £27.