Banks v. Maxwell, 131.

• Court: North Carolina Supreme Court
• Writing for the Court: BROGDEN, Justice
• Citation: Banks v. Maxwell, 205 N.C. 233, 171 S.E. 70 (N.C. 1933)
• Decision Date: 11 October 1933
• Docket Number: No. 131.,131.
• Parties: BANKS . v. MAXWELL.

171 S.E. 70

205 N. C. 233

BANKS .

v.MAXWELL.

No. 131.

Supreme Court of North Carolina.

Oct. 11, 1933.

Appeal from Superior Court, Henderson County; P. A. McElroy, Judge.

Action by Joseph Arthur Banks against James A. Maxwell. Judgment of nonsuit, and plaintiff appeals.

Affirmed.

Plaintiff instituted this action to recover damages for serious injuries sustained by being gored by a bull owned by the defendant. The plaintiff was a boy 18 years of age, and had been raised on a farm, and on July 10, 1931, was working on the farm of defendant

The narrative of the injury is substantially as follows: "Mr. Maxwell had a bull on the place, but prior to July 10, 1931, I had never been called upon to perform any service whatever in regard to the bull. I had never had any experience and did not know anything about handling bulls. Mr. Maxwell never told me or gave me any instructions about how to handle the bull. * * * The bull was kept In a pen back of the dairy barn, and the pen was between twenty and thirty by sixty feet. * * * The lot was enclosed and made out of rails and poles and was built on one side of the barn. * * * The bull was in this lot or pen on the morning of July 10, 1931, at the time I finished milking. The pen had a gate leading into it. On the morning of July 10, 1931, after I had finished milking, Mr. Maxwell told me to take the bull out of the lot and drive him to the pasture. He told me to go into the pen and run him out. When he told me to go into the pen I at first hesitated. I had no idea what the brute was. * * * I picked up a club and started in, but he told me not to hit the brute with the club and I dropped it. 1 had not any more than dropped it until he turned on me, knocked me down and gored me. He rolled me around and gored me. * * * He was rolling me with his head. He pushed me to the lower side of the pen and I got out of the pen. * * * In the thirty days prior to July, 1931, I worked for Mr. Maxwell not less than ten days. I suppose I worked for him more than a third of the time. * * * Sometimes when I came in early I saw them driving the bull in and I had seen them driving him out. Sometimes my brother drove him out He is eighteen years old. * * * I never saw anybody have trouble taking him out. I had never seen anybody put the dogs on him and drive him to the pasture. * * * I had seen Arthur Lance drive him. He is about twenty-five years old. He was just coming on behind him and the bull was just going on into the pen. * * * I have heard some people talk about bulls, but I did not know anything about that one. * * * Before going into the pen I picked up a stick. The stick was about the size of my arm and about eighteen inches long. * * * Mr. Maxwell told me not to hit him. I don't know how close I was to him when I raised the stick. I sent to draw it back and when I did he told me not to hit the bull. * * * My brother had not been attending to the bull very long --not more than a month and a half, if that long. * * * After the bull had me down and was goring me Mr. Maxwell hissed the dog on the bull. I don't know if the dog was there when I went into the pen, but while the bull had me down the dog commenced barking and I suppose Mr. Maxwell hissed him on."

Another witness for plaintiff said: "I drove the bull from the pen to the pasture and drove him back in. Sometimes Lance would drive the bull, but I...