Crosby v. Burge
| Decision Date | 14 April 1941 |
| Docket Number | 34458. |
| Citation | 1 So.2d 504,190 Miss. 739 |
| Court | Mississippi Supreme Court |
| Parties | CROSBY et al. v. BURGE. |
Parker & Morse, of Poplarville, for appellants.
Hathorn & Williams, of Poplarville, for appellee.
Appellee as plaintiff in the lower court, obtained a judgment, upon a jury verdict, for ten thousand dollars against appellants, as defendants there, for injuries to a testicle resulting from being struck thereon by the handle of a plow then being used by appellee, an employee of appellants. From this verdict and judgment appellants appeal.
The declaration charged that the injury was the result of negligence on the part of the appellants, in that they furnished to appellee an unsafe horse and a defective plow with which to do his work. But the case was tried and submitted to the jury, under plaintiff's instructions, on the theory only of an unsafe horse; and since we cannot see how the defects in the plow, if they existed, could have produced the injury, as detailed in the evidence, we consider in this opinion only the question of the unsafe horse.
It is charged that the horse was wild and unruly, and the particular trait of which complaint is made was a tendency to jump, or jerk, when struck or touched in the side, or when a line got under his tail.
Appellee began working for appellants on November 6, 1939. He was furnished a team of mules and a twelve-inch steel-beamed turning plow. He began plowing in cut-over land which had been planted to tung trees after the pine timber had been removed therefrom. Shortly thereafter he and one McDonald, a negro, mutually exchanged teams, appellee getting in the exchange a team consisting of this horse and a mule, each party keeping his plow. He plowed with his new team until the accident occurred November 30, 1939.
The land had been plowed the year before, but it seems that when the accident occurred appellee was plowing a new furrow on the outer edge of the formerly plowed ground. He described the circumstances of the accident in the following testimony:
"Tell the court and jury what you were doing on the day you got hurt and how you got hurt? I was plowing on a hillside, and there was a bank there three or four feet high, or something like that, and I had the mule on that place. There was a narrow lot between this cut and the row of trees and it hadn't been plowed out very wide. I had my mule on this place to keep the single-tree from skinning the trees * *.
Did you try to keep the single-tree from skinning the trees?
Yes sir.
All right, go ahead.
Well the mule stepped off of that bank and it hit the horse and * * *
Why did you have the mule on the bank, Mr. Burge?
Holding him off the tung oil trees.
All right, go ahead.
The horse jumped.
How hard did the horse jump?
His best.
What happened to you and the plow when the horse jumped?
When he jumped the handles come apart and the plow hit the stump and the plow handle hit me right in the privates.
What hit the stump?
The point of the turning plow.
You say the plow handles came apart?
Yes, sir.
And that jerked you forward * * *?
By Mr. Morse: We object to that-it's leading." (Sustained).
"Well, what happened to you?
I fell.
What happened to you when the horse jumped and the point of the plow hit the stump?
The handle hit me in the privates.
What part of your privates, Mr. Burge?
I believe you call it the testicles.
Did it hit you hard?
Yes, sir.
What did you do after you got hit?
I fell over on the ground and laid there and rolled.
How long did you stay there?
Ten or fifteen minutes."
That was Thursday. He continued to plow that day. He did not plow Friday because of rain. He plowed Saturday and part of Monday, quitting, he says, because of his injury.
The first question presented is whether, under this record, the proof shows that this was not a reasonably safe horse for this work. The master is under no duty to furnish a safe horse. He is not an insurer. Mississippi Law Journal, Vol. XI, April, 1939 No. 4, page 344, footnote 29; Harvey et al. v. Smith, Miss., 198 So. 739; Wilson & Co. v. Holmes, 180 Miss. 861, 177 So. 24; Gulf Refining Co. v. Williams, 183 Miss. 723, 185 So. 234; New Orleans & N. E. R. Co. v. Penton, 135 Miss. 571, 100 So. 521; Brown v. Coley, 168 Miss. 778, 152 So. 61; 3 C.J.S., Animals § 149, p. 1253. But he is under the duty to exercise reasonable care to furnish his servant with a team reasonably safe for use in doing the work required to be done by the servant. Central Lbr. Co. v. Porter, 139 Miss. 66, 103 So. 506, 42 A.L.R. 221; Farmer v. Cumberland Telephone & Telegraph Co., 86 Miss. 55, 38 So. 775; E. L. Bruce Co. v. Brogan, 175 Miss. 208, 166 So. 350.
Appellee's proof as to the character of the horse was made by himself; Travis Dunston, a negro; one, Tyner, father-in-law of appellee; and Roy Johnson, a negro.
While some of these witnesses use the expression, "wild horse," their testimony, boiled down and reduced to details, and fairly interpreted, shows that the horse would jump or jerk when struck or touched in the side by a brush or bush or some other object, and when a line got under his tail. A fair sample of this testimony was that given by the witness, Roy Johnson, who at the time of the trial was farming for a first cousin of the appellee. We quote his testimony:
"Well, state what the condition of the horse was.
Well, the horse he was plowing wasn't what you'd say a real gentle horse.
What do you mean by that?
I'd call it kinder wild.
What did he do to make you think he was kind of a wild horse?
He was kinder touchous. Everything that touched him made him jump.
When what would touch him?
A bush or something like that.
When a bush would touch him you say he'd jump;-how would he jump?
He wouldn't make a hard jump but he would jump all right."
There is something said of the necessity for using a "twister" on the nose of this horse, but it is shown that this was when he was being broken to work, some three to four years previously, which is not an unusual necessity in breaking horses.
On the other hand, it is shown that for about two years prior to the trial of this case this horse had been used in the same kind of work. He had been worked by a number of different people. Not one of those who had worked him told of any misbehavior on the part of the horse;...
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...any known provocation, will sometimes shy, jump or even start to buck. This has been recognized concerning plow horses in Crosby v. Burge, 190 Miss. 739, 1 So.2d 504. We recognize the same rule as concerns riding horses. Plaintiff recognized it in a limited manner when he stated that all ho......
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Vendrella v. Astriab Family Ltd. P'ship, SC18949
...restless and difficult to handle, particularly when in the hands of an inexperienced rider." [Footnote omitted.]); Crosby v. Burge, 190 Miss. 739, 748, 1 So. 2d 504 (1941) ("courts . . . take judicial notice of the character and habits of domestic animals . . . [and] [i]t is common knowledg......