Kocha v. Union Transfer Co.

• Decision Date: 17 November 1925
• Citation: 205 N.W. 923,188 Wis. 133
• Parties: KOCHA v. UNION TRANSFER CO.
• Court: Wisconsin Supreme Court

188 Wis. 133

205 N.W. 923

KOCHA

v.UNION TRANSFER CO.

Supreme Court of Wisconsin.

Nov. 17, 1925.

Appeal from Circuit Court, Milwaukee County; Otto H. Breidenbach, Judge.

Action by James Kocha against the Union Transfer Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

On April 25, 1921, defendant's driver with 12 years' experience as driver, left defendant's barn on Twelfth street, a short distance to the north of Grand avenue, one of the principal thoroughfares of the city of Milwaukee, on his way to a point several blocks to the east and south of Grand avenue. He drove a delivery wagon, and at the rear end of its 6-foot wide platform were fastened 3 horses abreast, each attached to the wagon by a halter of such length that the horse's head was about a foot from the wagon. He had driven east on Grand avenue about 3 blocks when plaintiff, a man about 41 years of age, riding in the same direction on a bicycle, and at a rate of about 10 miles per hour, was thrown to the pavement by reason of his bicycle being kicked by the horse which was on the north side.

Testimony on behalf of plaintiff was to the effect that the horses were skittish while being led down the street, and one of them was so when leaving the barn, that just before the accident an automobile from the rear sounded its horn as signal to defendant's driver, who turned closer to the south curb to let it pass, and that at about the same time plaintiff was also passing, and was kicked at when he (plaintiff) was about 3 or 4 feet north of the horse; that is, to the side. On cross-examination of defendant's driver, he stated that it might have been better to have had some one in the rear of the wagon in a position to speak to or in some other manner control the horses.

In the civil court, defendant had judgment. On appeal by plaintiff, a new trial was ordered in the circuit court, and the jury, by special verdict, found that the defendant failed to exercise ordinary care in the manner in which it caused the horse to be led through the streets; that such was the proximate cause of plaintiff's injury; that there was no contributory negligence by plaintiff; and assessed damages at $860.

From judgment in plaintiff's favor, defendant has appealed.Charles M. Scanlan, of Milwaukee, for appellant.

Raymond T. Zillmer, of Milwaukee (Clarence W. Bradford, of Milwaukee, of counsel), for respondent.

ESCHWEILER, J. (after stating the facts as above).

[1][2] Although the complaint alleged that defendant's three led horses were “highbred, spirited, nervous, active, young horses,” there was no allegation that the horse which did the kicking or any of the three had any vicious or mischievous propensities, and certainly we should be loath to say that any of the above-quoted descriptive adjectives, even if applied to an animal, should be construed as alleging such propensities, nor is it alleged that defendant had notice of any such propensities, if any such there were, nor was evidence offered on the trial in such regard other than that of the skittishness above stated. There is no basis therefore for a claim of liability of defendant on the first of the two common-law grounds upon which the owner or keeper of domestic animals may be held accountable for injuries. The rule was concisely stated in Dearth v. Baker, 22 Wis. 73:

“The owner of a domestic animal is not liable for injuries done by it, unless he had notice of its mischievous propensity, or the injury was attributable to some neglect on his part.”

It was so again stated in Slinger v. Henneman, 38 Wis. 504, 507. It is so generally recognized. 3 C. J. p. 89; 1 R. C. L. p. 1094; Cooley on Torts (3d Ed.) p. 693. This is the rule also when the animal is lawfully or properly on the highway. 1 R. C. L. p. 1095; 3 C. J. 92.

It is the well-recognized rule in England. Oliphant, Law of Horses (Canadian Ed.) p. 371; Hanover, Law of Horses (2d Ed.) p. 366, § 708. It was fully discussed in Cox v. Burbridge, 13 C. B. Rep. (N. S.) 431, decided in 1863, and in the leading case of Hammack v. White, 11 C. B. Rep. (N. S.) 587, in 1862, an action for a death, and in which Erle, C. J., said: “The mere fact of restiveness is not even prima facie evidence of negligence.” This case was approved of and followed in 1880 in Manzoni v. Douglas, 6 Law Rep. Q. B. Div. 145.

This rule of the common law has been changed by statute in this state, but only so far as it affects the dog. While as to the dog there has been taken away his common-law or primitive privilege to a free first bite (Legault v. Malacker, 156 Wis. 507, 508, 145 N. W. 1081)), although, if mad, it is restored (Legault v. Malacker, 166 Wis. 58, 62, 163 N. W. 476, 1 A. L. R. 1109, with note page 1113), there has been no modification as to the horse or a taking from him of his free first kick.

In this case, not only was there no evidence by plaintiff as to the prior existence of vicious or mischievous propensities, but the defendant, assuming the burden of proving the disposition and nature of this horse, did make such a showing that at the close of the trial it appeared, as radiantly clear as the beams of an unclouded, noonday, summer sun, that, to quote from appellant's brief, “the good character of the horse stands unimpeached.”

It being therefore a verity in this case that the horse possessed that which, according to Iago, if in man or woman, “is the immediate jewel of their souls,” a good name, it must suffice for the horse and for us, without determining whether, in addition to good character and reputation, he also possessed a rare discriminating intelligence of head or heels when, in his pick for his kick, he chose the insensate bicycle rather than the sensating rider, as it is claimed for him by appealing counsel by saying, “he very carefully kicked the bicycle, not the man,” and the bicycle in the...