Knickerbocker Ice Co. v. Finn
| Decision Date | 03 May 1897 |
| Citation | 80 F. 483 |
| Parties | KNICKERBOCKER ICE CO. v. FINN. |
| Court | U.S. Court of Appeals — Second Circuit |
John M Gardner, for plaintiff.
Charles C. Nadal, for defendant.
Before LACOMBE and SHIPMAN, Circuit Judges.
The defendant, at the close of the entire testimony, moved for a direction of a verdict in its favor, upon the ground that there was no proof of negligence on the part of the defendant; that there was no evidence that the horse was a vicious animal, or that it had any propensity to kick, of which the plaintiff should have been notified; and that the plaintiff was guilty of contributory negligence. The court denied the motion, to which the defendant excepted. The plaintiff was a 'helper' in the employment of the ice company; that is, he helped or assisted the driver of one of the ice wagons in the delivery of ice upon his route. He also drove while the driver was delivering ice. On the occasion of the accident, he was driving and occupied the usual seat which placed his legs very near to the heels of the horses. The horse which broke Finn's leg was an 'extra' horse, and was occasionally used. There was no question in the case in regard to the liability of the company if it had furnished one of its drivers, without warning, a vicious horse, which the company knew or ought to have known was vicious, while the driver did not know and was under no obligation to know the animal's evil habit. The points upon which the defendant principally relies are First, that there was no proof that the horse had a propensity to kick without provocation; and, second, that there was no proof that the defendant's foreman had knowledge of such a propensity, or that he had any knowledge which he should have communicated to Finn.
The testimony on the part of the plaintiff was to the effect that on two separate occasions, shortly before the accident, this horse viciously and without provocation, kicked in very dangerous manner; that on one occasion, after having repeatedly kicked, he was returned to the stable, and the superintendent, upon being informed of the reason for the return, furnished another horse; and that on the other occasion an employe told the superintendent of the horse's bad conduct. The testimony in regard to the horse's vicious propensity and the company's knowledge of it is confined to these two instances, but, if the testimony for the plaintiff is to be believed, the kicking was...
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