Farley v. M M Cattle Co.

• Decision Date: 09 July 1975
• Docket Number: No. B--4972,B--4972
• Citation: 529 S.W.2d 751
• Parties: Benny FARLEY, a minor, by and through his next friend, Charles Ballman, Petitioner, v. M M CATTLE COMPANY, Respondent.
• Court: Texas Supreme Court

Page 751

529 S.W.2d 751

Benny FARLEY, a minor, by and through his next friend Charles Ballman, Petitioner, v. M M CATTLE COMPANY, Respondent.

No. B--4972.

Supreme Court of Texas.

July 9, 1975.

Rehearing Denied Sept. 24, 1975.

Miller, Gann & Perdue, Ralph K. Miller and Jim M. Perdue, Houston, Edwards, Smith & Associates, Carson Smith, Fairweather, Hale & Dambold, Charles W. Fairweather, Amarillo, for pititioner.

Gibson, Ochsner, Adkins, Harlan & Hankins, A. B. Hankins, Kolander, Templeton & Hamilton, Robert L. Templeton, Amarillo, for respondent.

SAM D. JOHNSON, Justice.

This is a suit for damages for personal injuries sustained by Benny Farley when the horse he was riding collided with another horse ridden by a co-worker while they were in the process of rounding up cattle belonging to the M M Cattle Company. At the conclusion of plaintiff's evidence, the trial court entered a take-nothing judgment against Farley based upon defendant's motion for instructed verdict. The court of civil appeals affirmed. 515 S.W.2d 697. We reverse the judgment of the court of civil appeals and remand the case to the trial court.

On July 12, 1972 Benny Farley, Danny Beebe, James Guinn and Bunk Farley were rounding up calves from a pasture of the Bear Creek Ranch owned and operated by defendant M M Cattle Company. Bunk Farley is the father of Benny Farley and the foreman of the ranch. On the occasion in question, Danny Beebe and Benny Farley, on horseback, were engaged in moving about fifty calves when one of the calves broke away from the herd. Both Danny Beebe and Benny Farley rode after the calf to bring it back and in so doing the two cowboys ran their horses on either side of the running calf for the purpose of guiding it back to the herd. During this rapidly moving process, the horses of the two cowboys became headed in a direction which, if continued, would result in a collision. Upon discovering the impending peril, Danny Beebe reined his horse to the left away from Farley's horse. At almost the same instant Danny Beebe attempted to avoid the accident, Benny Farley's horse struck the side of Danny Beebe's horse. Benny Farley's horse fell to the ground and Danny Beebe's horse stumbled to its knees. Benny Farley was thrown off of his horse and suffered severe personal injuries.

Benny Farley alleged negligence on the part of M M Cattle Company in four respects: (1) in furnishing him a horse which was unsafe for the work which was to be done; (2) in instructing him to use the horse for rounding up cattle under such circumstances as to pose an unreasonable risk of harm to him; (3) in failing to properly supervise the operation; and (4) in failing to furnish him a horse which was suitable for the purpose for which the animal was intended to be used. Benny Farley further alleged that each of the above acts of negligence was a proximate cause of his injuries. In its answer M M Cattle Company pleaded among other things voluntary assumption of the risk, contributory negligence, ¹ the fellow servant rule and the doctrine of parental immunity of the plaintiff's father which would allegedly protect M M Cattle Company as the father's employer.

Upon conclusion of the plaintiff's evidence, M M Cattle Company presented a motion for instructed verdict based upon its contention that the evidence submitted by the plaintiff failed to raise a fact issue regarding any of the alleged acts of negligence or proximate cause. The trial court granted the motion, withdrew the case from the jury and entered a take-nothing judgment in favor of defendant M M Cattle Company. The court of civil appeals affirmed, holding that even if there was negligence shown on the part of M M Cattle Company there was no evidence that such negligence was the proximate cause of Benny Farley's injuries.

Benny Farley brings ten points of error to this court. He contends first that the direct evidence admitted at trial was sufficient to raise issues of negligence and proximate cause for jury determination. He further claims that the trial court improperly excluded admissible evidence which would bear on such issues and argues, alternatively, that this improperly excluded evidence, along with the evidence admitted by the trial court, would be sufficient to raise fact issues of negligence and proximate cause. We agree the direct evidence admitted at trial was sufficient to raise jury questions as to negligence and proximate cause and therefore find it unnecessary to consider his additional and alternative arguments. In reaching this determination we have of course reviewed the evidence in its most favorable light in support of the plaintiff's position. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.1970); Constant v. Howe, 436 S.W.2d 115 (Tex.1968); Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951).

NEGLIGENCE

It is well established that an employer has certain nondelegable and continuous duties to his employees. Among these are the duty to warn employees as to the hazards of their employment and to supervise their activities, the duty to furnish a reasonably safe place in which to labor and the duty to furnish reasonably safe instrumentalities with which employees are to work. Leadon v. Kimbrough Brothers Lumber Company, 484 S.W.2d 567 (Tex.1972); Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934); Morton Salt Co. v. Wells, 123 Tex. 151, 70 S.W.2d 409 (1934); J. Weingarten, Inc. v. Sandefer, 490 S.W.2d 941 (Tex.Civ.App.--Beaumont 1973, writ ref'd n.r.e.); Prunty v. Bland, 454 S.W.2d 881 (Tex.Civ.App.--Houston (1st Dist.) 1970, writ ref'd n.r.e.); Restatement (Second) of Agency §§ 503, 506, 507, 510 (1958). Moreover, in measuring the employer's duty, the age and experience of the employee must be considered since it may be negligent to furnish a minor with, or fail to supervise the minor in the operation of, a certain instrumentality when to take the same action with a grown man or an experienced employee would not constitute negligence. Beaumont, S.L. & W. Ry. Co. v. Schmidt, 123 Tex. 580, 72 S.W.2d 899 (1934, opinion adopted); Landers v. West Lumber Co., 239 S.W. 195 (Tex.Com.App.1922, opinion adopted); W. E. Grace Mfg. Co. v. Arp, 311 S.W.2d 278 (Tex.Civ.App.--Dallas 1958, writ ref'd n.r.e.); Dial v. Wilke, 127 S.W.2d 379 (Tex.Civ.App.--Amarillo 1939, writ ref'd); Restatement (Second) of Agency § 494 (1958).

All plaintiff's witnesses, each with considerable experience, testified that in working cattle a well-trained and responsive horse was absolutely necessary. The qualities of a suitable cow horse are that he must have a good disposition, neck rein fairly well, respond to commands, be predictable, dependable, calm and quiet. Each witness testified that a horse which did not possess these qualities would be dangerous in doing cattle work; the danger being directly related to the lack of control over it. A cowboy must have complete control over and response from his cow horse or it is very possible the horse may collide with other horses or with the animals around which it is working.

The horse which Benny Farley was riding the day of the accident possessed none of the qualities of a suitable cow horse. It was foaled in 1967 by a mare placed upon the ranch for general use by Joe Whittenburg, president of M M Cattle Company. The colt was originally named Cimarron but was assigned the nickname 'Crowbar' by Bunk Farley because of its cantankerous disposition. At the time of the accident Bunk Farley had been trying to break and train Crowbar for about a 'season and a half.' Bunk described the horse's response to training as 'broncish,' slow and 'harder than the usual colt to get along with.' He described the horse as not dependable, nervous, hardheaded and 'green broke,' meaning not yet fully trained. He testified that Crowbar did not rein well, had tried to throw him off on previous occasions and had stumbled with him several times. Bunk Farley was the only person who had ever ridden Crowbar. In addition, before Crowbar could be ridden even by him it was necessary to pull him behind a pickup trailer for some distance to warm him up and 'take the edge off.'

In addition to Bunk Farley, four other witnesses who had observed Crowbar testified to the horse's dangerous propensities. According to these witnesses, Crowbar was stubborn, unresponsive, unpredictable and undependable. He was described as a 'bronc' who was not fully trained. Several of these witnesses had specifically told Bunk Farley that they felt the horse was dangerous and that Bunk ought to get rid of the horse before he 'got somebody hurt.' One of the witnesses testified that on a prior occasion Crowbar had run toward the horse on which the witness was riding in a manner similar to the way Crowbar is alleged to have collided with Beebe's horse on the occasion in question.

Notwithstanding Bunk Farley's knowledge of Crowbar's dangerous nature, that no one else had ever ridden him before and that Crowbar had not been ridden at all for the last sixty to ninety days, on the day in question he directed Benny Farley to use the horse for the purpose of rounding up and moving calves. It was then necessary to pull Crowbar behind a pickup trailer for some distance before he was mounted. The calves to be moved had been on the range for some time, were not accustomed to being around people, were large and described as wild and nervous.

At the time of the accident Benny Farley was fifteen years of age. He had been riding horses since he was approximately four years old and by the time he was six to eight years old he began to help his father with the chores around the ranch. Benny was an experienced rider and described by his co-workers as a 'good hand.' Nevertheless, it was admitted he did not have as much experience as a full grown cowboy and that experience was a vital and necessary factor in performing this type of work. At least one witness indicated that...