252 CAREYING HORSES. 



injuries : and it was in respect of these injuries that the 

 action was brought. 



A verdict was entered for the plaintiff for 31^. 10s., 

 leave being reserved to the defendants to move to enter the 

 verdict for them, the Court to have power to draw infer- 

 ences of fact. A rule having been obtained accordingly, the 

 Court held, drawing inferences of fact (Martin and Bram- 

 well, BB., Pigott, B., dissenting), that the defendants were 

 not liable, since it was to be inferred that the injuries 

 resulted from the proper vice of the horse. Bramwell, B., 

 saying, " There is no doubt that the horse was the imme- 

 diate cause of its own injuries. That is to say, no person 

 got into the box and injured it. It slipped or fell, or 

 kicked, or plunged, or in some way hurt itself. If it did 

 so from no cause other than its inherent propensities, ' its 

 proper vice,' that is to say, from fright, or temper, or 

 struggling to keep its legs, the defendants are not liable. 

 But if it so hurt itself from the defendants' negligence, or 

 any misfortune happening to the train, though not through 

 any negligence of the defendants, as, for instance, from 

 the horse-box leaving the line owing to some obstruction 

 maliciously put upon it, then the defendants would, as 



insurers, be liable Now it might be a question on 



whom, in such a case as the present, the burthen of proof 

 lay : on the carrier or his employer ? But in the actual 

 case each party has given evidence. The defendants' 

 witnesses have sworn that the train proceeded on the 

 journey without disturbance or interruption, and that there 

 was nothing to excite the horse to do what he did to his 

 own damage, no cause of mischief except his own inherent 

 disposition. If this is so the defendants are not liable. 

 On the other hand, the plaintiff's witnesses have shown 

 that the horse was quiet, used to travelling, and therefore, 

 they say there must have been something extraordinary to 

 excite the animal. This is a question of fact properly for 

 a jury, but referred to us. If I am to decide it, I find for 

 the defendants. The evidence of the plaintiff makes it 

 improbaile it was the proper vice of the horse ; the evidence 

 of the defendants makes it impossible that it was otherwise." 



The burthen of proof in such cases would appear to 

 depend upon the question whether or not the defendants 

 were common carriers of animals. If they were so, it 

 would be for them to prove that they had not been guilty 

 of any negligence (o). 



(o) Prior v. London and South Western Rail. Co., 2 Times L. E. 89. 



