George H. Hammond Co. v. Johnson

• Decision Date: 08 November 1893
• Citation: 56 N.W. 967,38 Neb. 244
• Parties: GEORGE H. HAMMOND CO. v. JOHNSON.
• Court: Nebraska Supreme Court

38 Neb. 244

56 N.W. 967

GEORGE H. HAMMOND CO.

v.JOHNSON.

Supreme Court of Nebraska.

Nov. 8, 1893.

Syllabus by the Court.

1. It is the duty of a master to furnish for the use of his servant in the course of his employment proper and safe appliances and instruments for the performance of the services required, and if the master fail so to do, he is liable for such damages as are the direct result of such negligence, unless the servant himself is guilty of such negligence as contributes directly to the injury; and this rule applies irrespective of whether the appliances and instruments so furnished were animate or inanimate.

2. Where a master, a corporation, furnished a horse for the use of its servant in the line of his employment, wherein said horse injured the servant, the jury were properly instructed that, even if they should find that the horse was vicious and dangerous, still that the plaintiff could not recover unless the jury further found from the testimony that the master, through its managers or officers, knew, or by the exercise of proper care and diligence might have known, of the vicious and dangerous character of the horse.

3. The evidence in this case justified the jury in finding that the agent who, in the employ of a common master with the servant, directed the said servant to use the horse whereby said servant was injured, was not his mere coservant, but in giving the instruction aforesaid was a vice principal, and the master was therefore properly held liable for the injuries received by the servant in obeying such instructions.

Commissioners' decision. Error to district court, Douglas county; Doane, Judge.

Action for personal injuries by William J. Johnson against the George H. Hammond Company. Plaintiff had judgment, and defendant brings error. Affirmed.

Robt. W. Patrick, for plaintiff in error.

A. S. Churchill, for defendant in error.

RYAN, C.

This action was brought in the district court of Douglas county, Neb., by William J. Johnson against the George H. Hammond Company, a corporation, for compensation in damages in respect of injuries inflicted upon said plaintiff by a vicious, unbroken horse, of which plaintiff alleges that defendant, in whose employ he was, required plaintiff to take charge and drive in the course of his said employment. The petition, after alleging that the horse was vicious and unruly, sets forth that the defendant's manager, who well knew the vicious disposition of said horse, without giving plaintiff any notice of the existence of such disposition, required plaintiff to use the said horse in the course of his employment, and that plaintiff did use him as required, when the aforesaid horse, without any fault on plaintiff's part, began to kick and run, and became unmanageable, and thereby inflicted the injury complained of, from which it resulted that plaintiff was for a long time confined to his bed, and suffered intense and long-continued pain, and that at the commencement of this suit plaintiff was still suffering from his said injuries. There was also alleged the loss of a month's time, the expenditure of large sums of money for medical and surgical treatment rendered necessary by said injuries, which, with such other incidental results as followed from the injuries complained of, amounted to $10,550, for which plaintiff prayed that he might have judgment. The answer admitted that plaintiff, while in defendant's employ, was furnished the horse of which complaint is made in plaintiff's petition, and alleged that said horse was not in any way vicious or unbroken, but that the plaintiff was not a skillful or careful driver of horses, as alleged in his petition, and that it was owing to such lack of skill and want of care on his part that the alleged runaway of the horse and consequent injury to plaintiff was wholly due. There was in this answer the averment that defendant had paid all expenses arising from the accident during the time that plaintiff was thereby incapacitated for work, and that the defendant had paid the surgeon's bill rendered necessary by the injury complained of as well as for all loss of time which resulted from the injury to the plaintiff. Furthermore, the defendant answered that the injuries received by plaintiff were rendered serious by the misconduct of the plaintiff himself, in that, contrary to the advice of his attending surgeon, the said plaintiff persistently indulged in the use of intoxicating liquors. There was a reply in denial of these matters affirmatively set up by way of defense to the petition of the plaintiff. Of the issues joined there was had a jury trial, which resulted in a verdict in favor of the plaintiff for $4,750. Upon hearing the motion for a new trial the plaintiff was required to enter a remittitur (as the condition upon which said motion would be overruled) of the excess of the verdict over $3,500, which remittitur was accordingly entered, and judgment thereupon rendered for the last sum named. To reverse this judgment the defendant files its petition in error in this court.

The evidence in this case showed without question that the horse of which complaint is made was a young, awkward, green horse, as some of the witnesses expressed it. That he was a large, powerful animal there seems to have been no dispute, and it seems quite clear from the evidence that he was not naturally of a very vicious disposition, as that term is generally understood. He was not, however, a well-broken animal when he was purchased by defendant in error's agent, a short time before the accident, and his shortcomings in that direction seem to have been aggravated, rather than overcome, by the unskillful management of him by some of the employes of plaintiff in error, to whose care he was intrusted to be broken and handled. This was the condition of matters when this horse was intrusted to the defendant in error to be used upon the streets of the city of Omaha as a part of a team which handled and delivered to the regular customers of plaintiff in error, butcher's meat, the preparing of which for market in that condition was in plaintiff in error's line of...