Story v. Black.

4 Wall. 232; McKenzie v. Jewett, 15 Ohio St. 168; Landis v. Brant, 10 How. 348; Jones v. Marks, 47 Cal. 242; Ray v. Birdseye, 5 Denio, 626.

The purchaser at a sale of real property on execution acquires all the right, title, interest and claim of the judgment debtor therein (Code, § 329); but he acquires only such right and interest, and he takes the property subject to all the rights and equities of third parties which are capable of being enforced against the judgment debtor. "The rule of caveat emptor applies to execution sales." Chumasero v. Viall, 3 Mont. 379.

Says CLIFFORD, J., in Brown v. Pierce, 7 Wall. 218: "The correct statement of the rule is that the lien of the judgment creates a preference over subsequently-acquired rights, but in equity it does not attach to the mere legal title to the land, as existing in the defendant at the time of its rendition to the exclusion of a prior equitable title in a third person."

"Guided by these considerations the Court of Chancery will protect the equitable rights of third persons against the legal lien, and will limit that lien to the actual interest which the judgment debtor had in the estate at the time the judgment was rendered." How, Petitioner, 1 Paige, 128; 19 Am. Dec. 395; Ellis v. Towsley, 1 Paige, 283; White v. Carpenter, 2 Paige, 219; Buchan v. Sumner, 2 Barb. Ch. 181; Lounsbury v. Purdy, 2 Barb. Ch. 494; Kirsted v. Avery, 4 Paige, 15; Averill v. Loucks, 6 Barb. 27; Due v. Smith, 3 McLean, 362; Mason v. Wallace, 3 McLean, 148; Bank of Muskingum v. Carpenter's Adm'rs, 7 Ohio, 21; 27 Am. Dec. 616; Lake v. Doud, 1 Ohio, 415.

The judgment is affirmed, with costs.

Judgment affirmed.

Kennon v. Gilmer.

KENNON V. GILMER.

(5 Mont. 257.)

Evidence - negligence — animals · subsequent viciousness.

In an action for an injury by a vicious horse, evidence of previous and of sub. sequent viciousness is competent.

A

CTION against a carrier for injury by viciousness of a horse. The opinion states the case. The plaintiff had judgment

below.

W. W. Dixon and Stephen De Wolf, for appellants.

J. C. Robinson and Thomas L. Napton, for respondent.

WADE, C. J. This is an action by a passenger against a common carrier of passengers to recover damages for injuries alleged to have been received in consequence of the negligence and carelessness of the common carrier.

The complaint in substance alleges that on the 30th day of June, 1879, the defendants were common carriers of passengers for hire by stage coaches between the towns of Deer Lodge and Helena, in this Territory; that upon said day the defendants as such common carriers, and in the usual course of their business, and for the usual fare prepaid by plaintiff, received the plaintiff as a passenger on one of their coaches, for transportation from Deer Lodge to Helena aforesaid, and undertook to carry him safely on said passage; that in managing and conducting said coach from its starting point to its place of destination, the defendants were guilty of negligence and carelessness in this, that they failed to provide a suitable, safe and competent driver, and suitable, safe, gentle and well-broken horses for said coach, which was without the fault of plaintiff, who did not contribute in any way to said carelessness and negligence; that on said day while the plaintiff was a passenger as aforesaid, being transported as aforesaid, and in consequence of said negligence and carelessness, and by reason of the horses aforesaid being unsafe, nnsuitable and unmanageable, and one of them jumping and throwing itself on to the pole of the coach and thereby breaking the same, and said team of horses taking fright, the coach was in consequence thereof thrown and placed in such a condition of peril as to en

Kennon v. Gilmer.

danger the life of the plaintiff, and to make it apparently unsafe for him longer to remain on the coach, and he being actuated by great fear of bodily injury by longer remaining on the coach, jumped therefrom to the ground, by reason of the dangerous position in which the coach was placed by the defendants, in consequence of their negligence and carelessness aforesaid; that the plaintiff in so jumping from the coach acted as a reasonable and prudent man would have acted under like circumstances, and that he did not contribute to the injury he received and was without fault on his part; that in so jumping from the coach to the ground one of the plaintiff's legs was broken, and that in consequence thereof, it became necessary to and his leg was amputated, causing a sickness of three months, and an expense of $750; wherefore the plaintiff prays judgment for the sum of $25,000 besides the expenses aforesaid, and costs of suit. The defendants moved for a change of venue, which motion was overruled and a trial ensued, which resulted in a verdict for the plaintiff for the sum of $20,750. Judgment was entered on the verdict from which, and an order overruling a motion for a new trial, the defendants appeal to this court. The appellants in their briefs and arguments rely for a reversal of the judgment upon the following alleged errors:

1. The refusal of the court to grant their motion for a change of

venue.

2. The admission of incompetent and irrelevant testimony. 3. That the instructions to the jury were contrary to law.

4. That the testimony is insufficient to support any verdict for damages against defendants.

5. That the damages are excessive.

[Omitting other questions.]

2. It is charged in the complaint that the horses attached to this coach were unsafe and unsuitable, and that they became unmanageable, one of them jumping and throwing itself on the pole of the coach, thereby breaking the same. and said team of horses taking fright, etc.

Upon the issue presented by these allegations, the plaintiff, subject to objection and exception, introduced the testimony of M. C. Goodale, which was to the effect that she knew three of the four horses attached to the coach at the time of the accident; that one of them, on the lead, called Buckskin, "would run at the drop of the hat; was bad about shying, and quick to start;" and that one

66

Kennon v. Gilmer.

of the other horses, called Bitter Root, was gentle in the team to handle, but very ferocious when you got him started, and was bad about kicking; that in starting, the Buckskin horse was very wild and tricky, like a young colt; that he was changed around frequently, and worked in different places; and that some of the drivers would not drive him at all."

Catherine Goodale testified that she knew the Buckskin horse used by the defendants on the Deer Lodge road, about July 1, 1879; that she saw him shy during fair week of that year; that one afternoon the stage stopped at her house, and the horse acted so that the driver could scarcely stop the coach; that he always shied when passing freight wagons near her house; that he would shy so badly that the driver would have to rein the team up to the fence and hold them there; that one day the stage met some pack animals by her house, and that this horse acted so badly that the team nearly got away from the driver; that she had seen this horse act in this way very frequently; that she had lived on the road for a long time and had very often seen the horse act as she had said. On cross-examination the witness stated that it would be impossible for her to count up the times this horse had shied in passing her house, as "he is always at it if he meets a team; that upon one occasion as she was crossing the road the horse became so frightened that the driver could scarcely hold him; and that this horse was in the team attached to the coach the day of the accident."

George H. Piatt testified "that he knew this horse called Buckskin; that in March, 1881, he rode after him and another horse attached to a buggy; that after driving about a mile east of Deer Lodge, and in turning around in a lane toward the Buckskin horse, the pole crowded him and he kicked; when he came down he was straddle of the pole and sat down on it and broke it, and then tried to run, and went probably seventy-five feet before he could be stopped; that the driver struck the horse with the whip when they were turning around in the lane just before he kicked."

The appellants ably contend that all of this evidence is irrelevant and incompetent, and they cite authorities to the effect that evidence of other specific acts or instances of negligence on the part of the defendants, whose misconduct is alleged, independent of the negligence in question, is not competent, because raising a collateral issue. See Shearm. & Redf. Neg., § 191, note; Abb. Trial Ev. 584-85; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278; s. c., 19 Am.

Kennon v. Gilmer.

Rep. 181; Warner v. N. Y. Cent. R. Co., 44 N. Y. 465; s. c., 11 Am. Rep. 724; Robinson v. Fitchburgh R. Co., 7 Gray, 92; Maguire v. Middlesex R. Co., 115 Mass. 239; Miss. C. R. Co. v. Miller, 40 Miss. 45; Sherman v. Kortright, 52 Barb. 267; Jacques v. Bridgeport R. Co., 41 Conn. 61; Mobile R. Co. v. Ashcraft, 49 Ala. (N. S.) 3 5; Fillo v. Jones, 2 Abb. Ct. App. Dec. 121; Haynes v. Burlington, 38 Vt. 350; Kent v. Lincoln, 32 Vt. 591; 1 Whart. Ev., § 40; Bailey v. Town of Trumbull, 31 Conn. 581; Eppendorf v. Brooklyn City, etc., R. Co., 69 N. Y. 195; s. c., 25 Am. Rep. 171; Blair v. Pelham, 118 Mass. 420; Aldrich v. Pelham, 1 Gray, 510; Payne v. Lowell, 10 Allen, 147; Balt. & Susq. R. Co. v. Woodruff, 4 Md. 242; Bedford v. Hann. & St. Jo. R. Co., 46 Mo. 456; Clemens v. Hann. & St. Jo. R. Co., 53 Mo. 366; s. c., 14 Am. Rep. 460; Coale v. Hann. & St. Jo. R. Co., 60 Mo. 232. And especially do they insist that the evidence of the witness Piatt, as to the conduct of this horse about twenty months after the accident complained of, is irrelevant and incompetent. It is very clear, upon principle and authority, that when a party is sued for damages flowing from negligence imputed to him, it is irrelevant to prove against him other disconnected though similar negligent acts. 1 Whart. Ev., § 40. To admit such proof would be like attempting to establish the guilt of a defendant on one charge of crime, by proving that he was guilty of another and similar crime.

But that is not the question. Was the horse in question safe, steady and suitable for the purpose for which he was used, or was he habitually unsafe and unfit for such use? It has been said that there is no better evidence of negligence than the frequency of accidents, and it might safely be said that there is no better evidence of the unsafe character and habit of a horse than frequent and similar acts of viciousness. The vicious habits of a horse can only be proved by instances. If an accident was caused by the shying of a horse, the fact that he was a shying horse and that he had this habit might be proved by instances, before and after the accident in question If the accident was caused by the horse kicking and breaking the pole, proof of like instances before and after the accident would tend, in some degree, to establish the character of the animal in this regard.

In the case of Todd v. Inhabitants of Rowley, 8 Allen, 51, it ap peared that the injury was received on the 11th day of June, 1861. One ground of defense was that the plaintiff was driving an unsafe