Page:Federal Reporter, 1st Series, Volume 10.djvu/738

 726 FEDBBAL BEHOETEE. �enteired for a race that day at the Chicago Dri%'ing Park, near thia city, competing with eight other horses for a purse offered by the Driving Park Association; and that the defendant was also the owner of a mare called the "Belle of Nelson," entered in the same race; that in the second heat of this race the defendant's mare, ridden by his servant or employe, was, by intention or negligence of the jockey or rider for the defendant, foully ridden against the plaintiff's horse, whereby the latter was thrown and killed. �The defendant denies that his mare was either intentionally or negligently ridden against the plaintiff's horse, and denies that the death of the plaintiff's horse was caused by any act of his jockey or rider. �If you have no knowledge of horse-racing, other than that devel- oped by the proof in this case, you must see that in a race like this a horse is necessarily exposed to great hazard and peril. In the first place the horses are mostly ridden by boys, who can do little in the way of guiding or controlling them, and whose chief office would seem to be to urge them with whip and spur to the top of their speed ; and in the second place the horses themselves are high-strung, nervous, and excitable, and with so many competitors as there were in this race, on a comparatively narrow traok, not running in a straight line, but around a parallelogram with curved or rounded corners, so that at least four tums must be made, there must be great risk of collision, espeoiailly at these tums, even when the horses are fairly and carefully ridden; and those risks the owner of a horse, starting in a race, must be presumed to take, — that is, he takes all the risks of accident incident to the race. But if a horse is intentionally fouled, — if it is purposely ran agaihst or interfered with by the rider of an- other horse,— the employer of the rider who so fouis him or interferes with him is liable for damages ; and, so too, each rider is bound, as far as possible, to keep his horse from fouling with another, and his employer would be liable for any palpable or clear act of negligence, whereby a foui was occasioned; but I can hardly imagine a case where there would be liability for negligence except where the rider was incompetent. The owner starting his horse in a race is bound to have a rider who is competent, to such an extent as is necessary, to sufficiently manage and control the horse for the purposes of the race, and the owner who starts his horse in a race with a rider in- competent to perform the duties of so guiding and controlling the horse, might be held liable for the consequences of his rider's incom- petency. This question, however, does not arise in this case, as ��� �