Cooper v. Cashman
| Decision Date | 03 January 1906 |
| Parties | COOPER v. CASHMAN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert E. Harding and H. J. Edwards, for plaintiff.
Walter I. Badger and Chester M. Pratt, for defendants.
The question in this case is whether there was evidence of negligence on the part of the defendants, which made them liable to the plaintiff for the kick of a horse by which he was injured.
If one knowingly keeps a vicious or dangerous animal, which is accustomed to attack and injure mankind, he is prima facie liable for injuries done by it, without proof of negligence as to the manner of keeping it. The negligence on which the liability is founded is keeping such an animal with knowledge of its propensities. Popplewell v. Pierce, 10 Cush 509. There was no evidence tending to show that the defendants' horse was an animal of the kind to which this rule of law applies, and the declaration does not contain averments founded on the rule. In his declaration the plaintiff says in substance that he was a teamster, that it was a part of his duty to take care of horses which he drove for the defendants, and that one of these horses kicked him as he was entering its stall, in the exercise of due care and that the defendants, 'well knowing the vicious and treacherous nature of the horse, were grossly careless and negligent in not informing the plaintiff of the vicious and treacherous nature of the horse.' The gist of the action is the alleged negligence of the defendants in failing to give the plaintiff information and warning necessary for his protection.
The plaintiff, a man 51 years of age, had worked in stables, according to his own testimony, all his life. Expressing the same thing in another way, he said he began at the age of 18 or 20 years. No one could know better than he the risk of injury in the care of horses, and how to avoid it. The horse that injured him was one of a large number which the defendants brought to their stable from Canada or the West, at one time, in March, 1902. The defendants at that time knew nothing particularly about the habits or peculiarities of any of them, except that which the plaintiff could judge by observation as well as they could. Everybody knows that there is some risk, and that care is necessary, in feeding and grooming and managing such a lot of strange horses. The evidence tended to show that the plaintiff was the only person who drove this horse after the defendants got him, up to the time of the accident on May 26th, and that he used him with another in a team during most of that period, grooming him, harnessing and unharnessing him, taking up his hind feet and cleaning them, and sometimes feeding him. He testified that he never saw the horse do anything that he would call vicious, and that he told one of the plaintiffs before the accident that he was a good, clever horse, a good work horse. He also said that he liked the horse, that he was fond of him, and named him after a young fellow in the house.
The only evidence that the horse ever did anything unkind was that on the day of his arrival at the defendant's stable when there was a crowd of spectators about him, one Martin, who testified that he was a coal hoister and engineer, and did not claim to be a horseman, went into the stall carrying a pail, and the horse kicked, hitting at the same time the man and the pail. Except at that time, he was never known to kick at anydoby prior to the time...
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