Durrell v. Johnson
| Decision Date | 06 May 1891 |
| Citation | 48 N.W. 890,31 Neb. 796 |
| Parties | W. G. DURRELL v. LACY JOHNSON |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before FIELD, J.
REVERSED AND REMANDED.
G. M Lambertson, for plaintiff in error, cited, as to the first instruction discussed in the opinion: Phil. R. Co. v Boyer, 97 Pa. 94; Baker v. Fehr, Id., 70; City of Lincoln v. Walker, 18 Neb. 244-50; Tolman v. Syracuse, 98 N.Y. 198. As to the second instruction discussed: Wharton, Neg., sec. 918; Cooley Torts, 342, 344, 346, 349; Rex v. Huggins, 2 Ld. Raym. [Eng.], 1583; Besozzi v. Harris, 1 F. & F. [Eng.], 92; Van Leuven v. Lyki, 1 N.Y. 515; Laverone v. Mangianti, 41 Cal. 138; Williams v. Moray, 74 Ind. 25; Keightlinger v. Egan, 65 Ill. 235; Carpenter v. Latta, 29 Kan. 591; Scott v. Grover, 56 Vt. 499; Glidden v. Moore, 14 Neb. 84.
Lamb, Ricketts & Wilson, contra:
Negligence is not a necessary element in an action to recover damages for an injury by a vicious animal. ( It is not necessary to prove long standing vicious habits; a single instance of such conduct will be sufficient. (Mann v. Weiand, 81* Pa. 243; Coggswell v. Baldwin, 15 Vt. 404; Cockerham v. Nixon, 11 Ired. [S. C.], 269; Buckley v. Leonard, 4 Denio [N. Y.], 500; Arnold v. Norton, 25 Conn. 95; Woolf v. Chalker, 31 Conn. 128; Kittredge v. Elliott, 16 N. H., 77; Jenkins v. Turner, 1 Ld. Raym. [Eng.], 109; Jones v. Perry, 2 Esp. [Eng.], 482; Smith v. Pelah, 2 Stra. [Eng.], 1264; Sarch v. Blackburn, 4 Car. & P. [Eng.,] 297; Blackman v. Simmons, 3 Id., 138; Reynolds v. Hussey, 5 A. [N. H.], 458, and cases cited.
This action was brought by the defendant in error against the plaintiff in error, to recover damages sustained by a kick from a horse of the defendant in error.
The defendant in error, in his petition in the court below, alleges "that the defendant was, on or about the 21st day of June, 1888, the owner of a certain bay Clydesdale stallion, and that the said defendant was then standing the said stallion for mares at the village of Cheney, in said county; and the plaintiff further says that the said defendant, for the purpose of inducing this plaintiff to patronize the said stallion, and to breed his mares to the said stallion, represented to this plaintiff that the said stallion was of good disposition and kind, docile, and was not vicious, and that he had no bad habits whatever. And the plaintiff further says, that, relying upon the said representations of the said defendant, this plaintiff agreed to and did breed to the said stallion, six mares; that said representations above set forth were false and untrue, and that the said bay Clydesdale stallion above mentioned was not kind, docile, and of a good disposition, but on the contrary was vicious, unmanageable, and addicted to the vicious habit of biting and kicking, which the defendant well knew, and that the said defendant, well knowing the character and disposition of the said stallion, did, on the 21st day of June, 1888, negligently, carelessly, and unsafely have and keep the same in a small barn, and in open stalls, so that the said stallion could come in contact with another stallion owned and kept by the said defendant in the same barn; that the said defendant carelessly and negligently neglected to provide box stalls for his said stallions so as to keep them separate from each other; that on the 21st day of June, 1888, relying upon the said representations as to the character and habits of the said Clydesdale stallion, went to the premises in the village where the defendant kept his said stallions, for the purpose of breeding one of the plaintiff's mares to the defendant's said bay Clydesdale stallion, and that the defendant then and there negligently and carelessly permitted the other of his said stallions, to-wit, a gray Norman stallion, to be and remain in the said small barn in an open stall, and insecurely protected from the said Clydesdale stallion while the latter stallion was serving plaintiff's mare; that the defendant so negligently and carelessly handled the said Clydesdale stallion as to permit him to come in contact with and fight the said Norman stallion, and so negligently and carelessly managed and held the said Clydesdale stallion as to permit him to force this plaintiff into a corner of the said barn, and negligently and carelessly permitted the said stallion to kick this plaintiff on his left leg between the ankle and knee joints, and thereby break the same; that all of the matters hereinbefore alleged occurred without any negligence or carelessness on his part, and entirely through the negligence and carelessness of the defendant.
The answer of the defendant below is a general denial, and that the injury was caused by the negligence of the plaintiff below.
On the trial of the cause the jury returned a verdict in favor of the plaintiff below for the sum of $ 500, upon which judgment was rendered.
The plaintiff below was called as a witness in his own behalf and testified in regard to the cause of the injury as follows:
A. I was holding the mare at the time, and the backed at the mare. He came and "jagged" hold of me and said "stand off the mare, you damned fool." I left off the mare, and the mare shied.
Q. Who took hold of you?
A. Pete Johnson.
Q. Where was the horse at this time?
A. On the mare.
Q. What did he say?
A. He took hold of the collar and he said, "Let me take hold, you damned fool; you don't know what you are doing." I did not say a word and let go, and when I got off by the bay horse, whether the horse kicked me I don't know. I heard an awful squeal, and I looked around and I saw the bay horse kicking the gray horse. Pete pulled at him pretty hard and pulled him away--the gray horse--to the middle of the stall. He pulled him away, and I could not move at all. I was there by the side of the mare. He said, "get up, there"; he said, "I will manage them." I never said another word. He had hold of the leading strap, and a whip in his left hand, and he went to the northeast corner and cut the bay with the whip, I thought pretty hard. He whipped the horse right in the stall where I was. I don't say he done it purposely the first time he kicked.
Q. What horse kicked?
A. The bay horse
Q. The one that served the mare?
A. Yes, sir; I sung out, let me get away or he will kill me. I got prepared in part. I saw him coming and I hauled myself on the manger. He came and catched this leg just as I got on the manger--got on top of the manger. That is the last I saw of anything till they came and lifted me out of the stall--the manger.
Q. When the horse was kicking where was your mare--right in the stall?
A. Right in the stall; I say I cannot say whether he was kicking me or the mare.
Q. Where was the mare?
A. Back to the manger.
Q. Her head to you?
A. Her head was to me, and his horse was a large horse.
The court instructed the jury as follows:
In Lincoln v. Walker, 18 Neb. 244, 20 N.W. 113, this court held that "in an action for negligence, where the plaintiff can prove his case without disclosing any negligence on his part, contributory negligence is a matter of defense, the burden of proving it being on the defendant." That decision was rendered after a very careful examination of the...
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