Boatman v. Miles

• Citation: 199 P. 933,27 Wyo. 481
• Decision Date: 06 August 1921
• Docket Number: 1003
• Parties: BOATMAN v. MILES
• Court: Wyoming Supreme Court

199 P. 933

27 Wyo. 481

BOATMAN v. MILES

No. 1003

Supreme Court of Wyoming

August 6, 1921

APPEAL from the District Court of Natrona County; HON. RALPH KIMBALL, Judge.

Action by Roy Boatman against James H. Miles for the recovery of damages for personal injuries inflicted by a vicious stallion owned by defendant, which occurred while the plaintiff was in the employ of the defendant, and working with the animal in question as a part of his general duties. The material facts are stated in the opinion. From a judgment for plaintiff defendant appeals.

Affirmed.

W. L Wilson and Geo. W. Ferguson, for Appellant.

The action was for damages claimed by the plaintiff on account of alleged injuries caused by a vicious stallion owned by appellant. Appellant moved for a directed verdict which was over ruled. It is contended that the evidence is insufficient to support the verdict and judgment; the owner of a domestic animal is not liable for an injury committed by it to an employee who has the care of the animal unless he knows of its vicious disposition and the servant is ignorant thereof and that the negligence of the servant has not contributed to the injury. (Todd v. Danner, 46 N.E. 829; Borman v. City of Milwaukee, 67 N.W. 924; (Wis.); Missouri Valley Bridge and Iron Co. v. Ballard, 53 Tex. Civ. App. 110; St. Louis Natl. Stock Yds. v. Morris, 116 Mo.App. 107; Clark v. Missouri K. & T. R. Co., 77 S.W. 822 (Mo.)) To hold defendant liable for the alleged injuries is to make him an insurer of his servant. The action is based on the ignorance of the respondent of the alleged vicious character of the stallion and the negligence of the appellant in failing to warn respondent of the same, and the case was tried on that theory. The evidence fails to support the verdict which was evidently returned through sympathy for the respondent.

Floyd E. Pendell, for Respondent.

Mr. Miles was a man of large experience in handling stallions and as is shown from the evidence, knew the vicious tendency of the stallion, which injured plaintiff, but nevertheless assured the plaintiff that the horse was gentle, thus inducing him to continue in the service of defendant. Defendant was therefore liable for the injuries. (2 Cyc. 377. 3 C. J. 396. Deliside v. Burroughue, 54 L. R. A. 420; Clowdis v. Fresno Co., 45 P. 1041; Rider v. White, 22 Am. Rep. 600; Kitridge v. Elliott, 41 Am. Dec. 717; McCaskee v. Elliott, 53 Am. Dec. 706; Brown v. Green, 42 A. 991; Kenmore v. Gilmore, 131 U.S. 22.) The jury passed upon the weight of the evidence and their finding should not be disturbed. (3 Ency. of Ev. 753.) The presumptions favor a verdict. (4 C. J. 773.) The finding of the trial court will, on appeal be presumed to be supported by the evidence. (4 C. J. 777.)

BLUME, J. POTTER, C. J. and TIDBALL, District Judge, concur.

OPINION

BLUME, J.

This is an action brought by appellee, plaintiff below, against appellant, defendant below, in Natrona County, on account of severe and permanent injuries inflicted upon him by a vicious stallion of the appellant while plaintiff was in the employ of the defendant. The case was tried to a jury. At the conclusion of plaintiff's testimony defendant moved for a directed verdict. This motion was overruled. A like motion was made by defendant at the conclusion of all the evidence. This, too, was overruled. The jury returned a verdict for plaintiff in the sum of $ 3000, and judgment was entered thereon. The case is here on direct appeal, and the only question argued is, that the verdict is not sustained by the evidence, for the reason that it appears that the appellee had just as much knowledge of the vicious character of the stallion as appellant, and for that reason assumed, as a matter of law, the risk of his employment, and that the injury was the result of his own fault. For the purpose of this case, therefore, we must take the testimony, tending to sustain plaintiff's case, as true.

Appellant was shown to have been, at the time of the accident in question, about 40 years of age, with 19 years' experience in ranching. He bought the stallion in question in Casper and owned it from May, 1916, to the time of the accident, on June 11, 1917, and during most of this time handled it personally. He owned it during part of the breeding season in 1916 and during the whole of it in 1917. He had owned several stallions prior to the one in question, so that he must have been fairly familiar with stallions in general. He knew that during breeding seasons they are apt to be more vicious than at other times. Two witnesses testified to vicious propensities of the stallion, manifested while it was still at Casper, shortly before the appellant purchased it. It had a habit, as was shown, of "nipping" at persons approaching. On June 10, 1917, the day before the accident in question, while appellee was riding on a horse, the stallion ran behind him, bit a "chunk" out of the saddle, caught the horse by the neck and injured appellee slightly on the leg. This was in the presence of appellant, who remarked to the witness Stevenson that the boy should have had something with him for protection. Other manifestations of viciousness, comparatively slight, were manifested, to the knowledge of appellant, by the stallion during that day. On the evening of June 11, appellee went to get it out of a corral, approaching on foot. The animal struck him, bit him, made him unconscious, and permanently injured his right arm, to which medical attention was given for many months. The nature of the attack showed the stallion as actually vicious. (Mailhot v. Crowe, 99 Wash. 623, 170 P. 131; Webber v. Hoag, 8 N.Y.S. 76; Perrotta v. Picciano, 186 A.D. 781, 175 N.Y.S. 16.) Later, after appellant had sold the stallion, it attacked another boy, and "ran at" those coming up for relief, who, apparently in self-defense, shot it. It is true that the testimony does not disclose that any manifestations of viciousness prior to June 10th were communicated to the appellant, who claimed that the stallion was gentle. But he had been the owner of it for over a year. It is not likely that the temper of the animal changed over night. The jury had a right to consider common experience. The stability of characteristics, inborn or acquired, is well known, and manifested alike in the vegetable and animal world. The traits exhibited by us in childhood are often still noticed when we reach the age of maturity. A balky horse is apt to be always balky. A gentle kitten is apt to manifest that gentleness in early life. Changes in nature are generally slow; sudden, radical changes the exception. For this reason evidence of viciousness by an animal subsequent to an accident, acting, as it does, according to its natural instincts, is admitted. (Kennon v. Gilmer, 131 U.S. 22 and cases cited. Marks v. Lumber Co., 77 Ore. 22, 149 P. 1041; Thornton v. Layle, 33 Ky. L. 382, 111 S.W. 279, 17 L. R. A. (N. S.) 1233.) And for that reason too, the jury had a right to infer that the stallion in question was vicious long before June 11th, and in view of the fact that the appellant owned it for over a year, and had been its attendant, the jury had the further right to infer that despite the claim of appellant, he was in fact, or should have been, fully apprised thereof. (Hosmer v. Carney, 228 N.Y. 73, 126 N.E. 650; McGovern v. Fitzpatrick, 148 A.D. 34, 131 N.Y.S. 1048; Lynch v. Richardson, 163 Mass. 160, 39 N.E. 801, 47 A. S. R. 444; Perrotta v. Picciano, supra; Staton v. Mfg. Co., 52 Utah 426, 174 P. 821.)

Appellee testified that at the time of the accident he was about 21 years of age, limited in experience with horses, and with none in connection with stallions; that he started to work for appellant at ordinary farm work in April, 1917, and was directed to care for the stallion at various times, commencing about June 1st, prior to the accident; that he noticed the "nipping" above mentioned, as well as the conduct of the animal on June 10th, including the attack on him while he was on a horse; that he was not warned of the viciousness of the stallion; that on the contrary, he was told that the animal was gentle; that appellant explained the attack on June 10th by stating that the stallion would fight another horse, but if approached on foot, would be safe; that he relied on the statements and assurances given by appellant, and that he, himself, was not sufficiently experienced to know or appreciate the meaning of the actions of the stallion up to that time. This evidence warranted the jury in finding the appellant was negligent, and liable for the injuries received by appellee, unless the latter assumed the risk or was guilty of contributory negligence.

In discussing the question of assumption of risk, it is advisable in view of the wilderness of cases on the subject that we first draw some distinctions, which, for practical reasons ought often to be drawn. As far as possible, we shall cite only authorities treating of vicious animals, but inasmuch as we have found no case of that character dealing extensively with distinctions as to the various risks, we shall to some extent cite authorities dealing with the general subject involving the relation of master and servant. While the various kinds of risks often shade one into the other, we may state generally that a servant assumes (1) such dangers as are ordinarily and normally incident to his occupation, and a workman of mature years is presumed to know them, whether he does or not; (2) such extraordinary or abnormal risks which he (a) knows and appreciates and faces without complaint, or which (b) are obvious or apparent. (Dutrey Admx. v. Ry. Co., 265 Pa. 215; Streeter v. Scraper Co., 254 Ill. 244, 98 N.E. 541; Ry Co. v. Simmons, 24 Ga.App. 96, 100 S.E. 5; ...