West v. E. J. Blackshear & Co.

Citations

• 20 Fla. 457

Syllabus

<p>1. 'A declaration setting out the facts that the plaintiffs on a certain day, at defendant’s request, let to hire and delivered to the defendant a certain horse, the defendant promising to use the same in a careful, moderate and reasonable manner while he so had him on hire, but alleging that he did not use the horse in a careful, moderate and reasonable manner, and that by reason of negligence and carelessness on the part of the defendant, the horse ran away and becahie injured, damaged, sick and worthless, is a declaration upon a contract of bailment, and the liability of the defendant arises out of such contract.</p> <p>2. An action of this character, upon such contract of bailment, may be maintained against the bailee for any neglect or breach of duty, by which the bailors were damaged.</p> <p>3. The question of negligence being one of fact, is peculiarly for the jury. The evidence in this case was conflicting, and the jury having found by their verdict that the bailee was duly warned by the bailors of the fault or bad quality ot the horse, it was his duty in the use of the horse to exercise such .care and prudence as would ordinarily be required to guard against mishap from such fault of which he had been warned.</p> <p>4. Common or ordinary diligence, in the sense of the law, is such as men of common prudence generally exercise about their own affairs.</p> <p>5. An exception to the charge of the court to the jury that it is not in writing, must be taken at the time the charge is delivered. The parties may waive the formality of a written charge, and they^ cannot urge upon a motion for a new trial, or on an appeal in this court, for the flrst time, such omission. 17 Fla., 783.</p>