Hiring letting on hire a horse or carriage, the owner thereby impliedly warrants it to be tit, proper, and competent for the contemplated journey (Chew v. Jones). The hirer, on his part, must treat the horse or carriage as a prudent man treats his ow n property ; consequently he is only liable for damage caused by his " ordinary negligence." It lies upon the owner to prove this negligence positively ; it is not sufficient to merely prove that the horse was usually a good and reliable one (Cooper v. Burton). [See BAILMENTS.] If, however,ehe keeps it for a longer time than it was hired for, or uses it in a manner different from that contemplated on the hiring, then he is liable for any damage however caused. .Accordingly, as in Davi:, v. Garrett, if a man hires a horse to go from A to B, and instead of going by the usual road proceeds there by some unusual route, he will be liable for any damage however caused. If the horse falls lame on the journey, the hirer can abandon him at the place where he turns out unfit; but he must give notice to the owner, for it is the duty of the latter, under such circum stances, to send for the animal. The expense of curing a horse which has fallen sick without any fault of the hirer is to be borne by the owner. And if the horse becomes exhausted and refuses its food during the course of the hiring, the hirer is then under an obligation, according to Braye v. Maiw, to put it up and communicate with the owner, for should he pursue the journey so that the horse becomes worse, he will then become liable to the owner in damages. A hirer who himself undertakes the curing of a horse which has fallen sick during the hiring must, under any circumstances, obtain the best professional assistance available at the place (Dean v. Keate), other wise he will be responsible for the result of the cure.
It is laid down in Oliphant on Horses, that, apart from any special agree ment, the hirer pays for the shoeing of a horse he hires, but the owner pays for the shoeing when a carriage and a servant are let with the horse for a special journey.
Generally speaking the hirer of a horse is liable for any damage it may cause whilst under his control or that of his servants. He is therefore not generally liable when the horse is let to him together with a servant of the owner, and the servant has the control of the horse at the time when the accident causing the damage occurs. It is hardly an exception to this rule that if the hirer is at the time assuming the general management of the drive, or the accident has occurred as the direct result of his interference with the servant, he will be personally liable for the damage. The exception to the rule arises in cases where the hirer is in a position to control the servant, but does not do so ; as where, for example, he is a competent driver and is sitting on the box beside the servant and allows an accident to occur without attempting to interfere. The following adapted excerpts from the judgment of Chief Justice Tindal, in the case of JPLaughlin v. Pryor are of interest in this connection. The judgment is also of great value as an exposition of the doctrine under which a man may be liable for a wrong committed by a stranger, provided it was committed for the use or benefit of the former, who at the time, or subsequently, by conduct or acts, approved thereof or adopted it.
The cases in which the hirer of a carriage has been held not to be responsible for the act of the driver, depend upon certain special grounds. They depend upon the assumption that the hirer of the carriage, having no power of selection, no foreknowledge of the character of the driver, is not responsible for any negli gence or want of skill or experience on his part ; for it is the duty of the party who lets to exercise care and caution in the selection of those to whom lie entrusts the government and direction of his horses and his carriage. But here the question is whether a particular hirer has so conducted himself as to be liable as co-trespassers with the servants, in this case postillions, whose conduct has given rise to this inquiry. The general rule is, that all who are present, and who from the circumstances may be presumed to be assenting to the wrongful act are trespassers. In trespass all are principals. I think that there was abundant evidence in this case that the hirer was so assenting. In the first place he was present, sitting on the box of the carriage ; and when he saw the carriage was out of the line of vehicles, he must have known that the postboys intended to get into it again whenever they found an opportunity, so as to be enabled to pass through the toll-gate. Had the hirer at that time expostulated, I hesitate not to say that he would not have been a trespasser, whatever might have ensued ; for no servant can against his master's will make him a trespasser by any wrongful act of his. Had he expressed any, the slightest, disapprobation of the course the postboys were evidently pursuing, he would have escaped all liability ; or if the hirer and his friends had all been inside the carriage, so ,that they could not be supposed to be well aware of what was going on, the person injured must have sought his remedy elsewhere. But being, or some of them being, on the..outside, and seeing the improper manner in _which the postboys were endeavouring to get on, and, though not actually encouraging them in their unlawful course, yet abstaining from all intei position to restrain them, this, though not very strong, certainly was some evidence that the hirer assented to that course. But the evidence does not stop there ; for the hirer, sometime after the accident, in a conversation with one of the witnesses, said that be intended to have stopped when the carriage had established itself in the line and allowed the gig to regain its place. Now that remark showed pretty strongly that the hirer was exercising control over the motions of the postboys, and was an assent ing party to their act. I therefore think the hirer, being the master for the time being, being present and seeing what was going on, and not interfering to prevent the mischief, must be taken to have been au assenting party. This case therefore falls within the principle laid down in Gregory v. Piper and Chandler v. Broughton, in which latter case it was held that where a master and servant are together in a vehicle, and an accident occurs, from which an immediate injury ensues, the master is liable although the servant was driving.