Douglas v. Scandia Coal Co.

• Decision Date: 06 June 1913
• Citation: 141 N.W. 960,161 Iowa 180
• Parties: DOUGLAS v. SCANDIA COAL CO.
• Court: Iowa Supreme Court

161 Iowa 180

141 N.W. 960

DOUGLAS

v.SCANDIA COAL CO.

Supreme Court of Iowa.

June 6, 1913.

Appeal from District Court, Polk County; William H. McHenry, Judge.

Action to recover damages. There was a directed verdict for defendant. Plaintiff appeals. Affirmed.Guy Savage and E. A. Lingenfelter, both of Des Moines, for appellant.

Miller & Wallingford and O. H. Miller, all of Des Moines, for appellee.

PRESTON, J.

Plaintiff alleges that he was injured by a kick from a mule he was driving in defendant's mine. The only negligence charged is that the mule which was given to plaintiff to drive was a vicious, dangerous, and unsafe animal and known to be such by the defendant when the said mule was given plaintiff to drive. That the plaintiff knew nothing of the dangerous character of such mule nor of his vicious and unreliable temper; that the defendant was negligent in giving plaintiff such an animal to work, and was further negligent in that it did not acquaint the plaintiff with the character and temper of said mule. There is no allegation that plaintiff complained of the vicious disposition of the mule and that there was any promise to change and reliance thereon. There is some evidence in the record of complaint by plaintiff to one of defendant's employés, who, as plaintiff says, seemed to be assistant pit boss, that he did not like the mule. Plaintiff says: “I didn't like the way he worked, the disposition about him.” There was no complaint as to kicking. Plaintiff had been driving mules in this mine from February 16th to May 27th, the date he was injured. For about the first half of this time he drove another mule, and the last half the one in question. He says he did not like the first one, and he and another driver changed mules.

The case seems to have been tried on the theory, as alleged in the petition, that the mule was a vicious one, and that the company did not warn plaintiff of that fact. Having taken that position in the district court, it should be so tried in this court.

[1] It is defendant's contention that plaintiff had actual knowledge of the disposition of the mule to kick, and that when he gained this knowledge there was no longer a duty on the part of defendant to warn. That such duty was superseded by plaintiff's own knowledge, and that there was no negligence in failing to tell plaintiff what he already knew. Defendant also says that plaintiff's abuse of the mule caused it to be vicious.

If defendant had furnished a vicious mule without acquainting plaintiff with that fact, and plaintiff, without knowledge thereof, had been kicked by the mule, a different proposition would be presented. The undisputed evidence is that for at least five or six weeks before plaintiff was injured he knew, from his own observation, that this mule was vicious and would kick, and had often kicked at him. We quote some of the testimony of plaintiff bearing on this subject. He says:

“I have been a mule driver for 10 years. The first mule they gave me was named Mike, the last one Pat. Pat was something like a broncho; he was small; he would balk; the first thing every morning he was hard to start; if you went to beating him he would start kicking and everything like that; you couldn't do anything with him, but after you got him warmed up he worked all right. No one told me about Pat before I began driving him. I first learned of his disposition about a week after I commenced driving him. I did not whip him the first, second, or third days I drove him; he did not kick those days. He kicked at me in about a week after I commenced driving him several times, and after that he kicked at me about every day if he got stuck, and some time during the day he would get stuck. Q. So he would kick at you every day, but you would get out of his way; is that right? A. Get out of the way. Q. But from the end of the first week after you went there and drove Pat he got to kicking at you every day. That is right, is it not? A. Yes. There were days he didn't kick at me. Q. And Pat commenced to kick within a week after you got him? A. Yes. Q. And he kicked at you? A. Why, certainly he kicked at me. Q. And he kept that right up until he finally hit you? A. Yes, he got me all right. Q. Now, after Pat got to kicking at you he would go right at you, would he not? A. Sure he would. Q. How do you explain that he never kicked you before this time? A. I stayed out of his way, I guess. Q. And that was the only reason you didn't get kicked before this day? A. That was the only reason. Q. Did he act like he meant it? A. You bet you. He kicked to hurt. He wasn't playing whenever he kicked. Q. You were not in the habit of getting very close to his heels after you had driven him a while? A. I wouldn't give him any chance to kick me. Q. That was because you knew how vicious he was? A. Yes, sir. You couldn't trust him. I never did trust him. I watched him all the time. I trusted him up until I found out what he was. After that I didn't trust him. It didn't take very long to find that out. Q. You knew for three or four or five or six weeks before he hurt you if you did not keep away from his heels he would hurt you? A. Yes, I knew that. Q. And during that four or five or six weeks you tried to keep away from his heels? A. I...