McCready, by next Friend v. Stepp
| Decision Date | 02 February 1904 |
| Citation | 78 S.W. 671,104 Mo.App. 340 |
| Parties | McCREADY, by next friend, Respondent, v. STEPP, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene Circuit Court.--Hon. J. T. Neville, Judge.
From judgment rendered upon a majority verdict of a jury in favor of plaintiff, defendant has appealed. The petition for plaintiff's cause of action, embraced averments that defendant, a retail grocer in Springfield, had in use a one-horse wagon for delivery of goods sold to his customers and about August 13, 1902, while in defendant's employ and about the duties of such employment, defendant wrongfully ordered plaintiff, a minor, to deliver groceries and run such wagon, having at the time hitched thereto a horse, wild vicious, dangerous and unsafe to use for such purposes, and which wagon was therefore unsafe. That plaintiff was ordered and required by defendant to go in and run such wagon with such horse and deliver goods. That while in performance of his duty in running and riding in such wagon for purpose of delivering goods therefrom, under the order of defendant, the horse became unmanageable and ran away, breaking plaintiff's leg in two places, and plaintiff had received such hurts by reason of the negligence of defendant in requiring him, a boy of fourteen years, to run such wagon and deliver goods with such dangerous horse thereto attached. That the character of the horse was bad, and he was a wild and dangerous animal, liable to run away and kick, and its character was known to defendant at time he required plaintiff to go in the wagon; that plaintiff was ignorant of the character of the horse, and inexperienced, as a boy of such age usually is, in management of horses, and the injuries sustained were then detailed and judgment for damages prayed.
Defendant answered in a general denial.
The facts disclosed at the trial, in effect, were that plaintiff had been in the employ of defendant for several months, with duties of assisting in a grocery store and delivering goods to customers, for which defendant made use of two wagons with two drivers, plaintiff accompanying the driver of a wagon to assist in delivering groceries; that on August 13, 1902 plaintiff was ordered to go with Beltz, who was driving one of the wagons, and while making deliveries, the horse suddenly became unmanageable, kicked and ran off. It appeared that one of defendant's horses commonly driven in one of the wagons had become ill, and the horse causing the mischief had been offered for sale to defendant, the day preceding the accident and had been left with him on trial. On the day after its delivery to defendant, the horse was hitched up in one of the wagons and had been driven by Beltz for two delivery trips, and the third had started when the occurrence took place.
Judgment affirmed.
Hamlin & Mason and Geo. Pepperdine for appellant.
(1) Where there is no evidence of a fact, or no evidence from which a jury can legitimately infer its existence, and the existence of such fact is vital to the case, the court should take the case from the jury, and not allow the jury to infer its existence without evidence. O'Mally v. Railroad, 113 Mo. 319. The mere proof that an injury has happened does not authorize submitting the question of negligence to a jury. Murphy v. Railroad, 115 Mo. 111; Yarnell v. Railroad, 113 Mo. 570. The dangerous character of the horse, and defendant's knowledge thereof are material facts in the case. The burden of proving both of which is on plaintiff. Smart v. Kansas City, 91 Mo.App. 586; Hester v. Dold Packing Co., 84 Mo.App. 451; Murray v. Railroad, 101 Mo. 236; Benoit v. Troy & L. R. Co., 154 N.Y. 223.
A. H. Wear and J. T. White for respondent.
(1) It is the duty of the master to provide suitable and safe appliances for his servants, and if he fails to do so, or puts the servants in charge of appliances which are unsafe, when he has reasonable grounds to believe they are unsafe, he is liable for any damages which may result. A horse is an instrument within the meaning of the above rule. Leigh v. Railway, 54 N.W. 134; Hammond v. Johnson, 56 N.W. 967; McGarry v. Railroad, 18 N.Y.S. 195; Knickerbocker Ice Co. v. Finn, 80 F. 483. (2) The notice required which would make the defendant liable for the damage caused by his vicious animal is only knowledge of such facts as would put a reasonably prudent man upon his inquiry. If he knew, or by the exercise of reasonable care could have known that the animal was dangerous, it is sufficient. Ray on Neg. of Imposed Duties, 605; O'Neal v. Blase, 94 Mo.App. 648. (3) It is the duty of the master to use reasonable care and foresight in procuring appliances to be used by those in his employ, and the servant has a right to rely upon the master performing his duty. Dedrick v. Railway, 21 Mo.App. 433; Porter v. Railroad, 60 Mo. 160.
REYBURN, J. (after stating the facts as above.)
A general charge of error is made against the action of the trial court in giving and refusing instructions; but no specific error is assigned, and the single comprehensive instruction given, presented and embraced the various features of the case, fairly submitted the issues to the jury if the evidence warranted such submission, which will be later considered, and is unobjectionable. The controlling element of the case involves the proposition, whether, under the evidence, the case should have been permitted to go to the jury, or whether the instruction directing a verdict for defendant should have been given, either at close of plaintiff's case, or at termination of all the evidence, at both of which stages it was requested and declined. It was the duty of Stepp, as master, to furnish for the use of his servants, while in course of his employment, appliances and instruments proper, safe and suitable for the purposes for which they were furnished and for the performance of the services required; and this rule extends to and embraces instruments and appliances, animate as well as inanimate. McGarry v. R. R., 18 N.Y.S. 195; Knickerbocker, etc., Co. v. Finn, 80 F. 483; Leigh v. R. R., 36 Neb. 131, 54 N.W. 134; Hammond v. Johnson, 38 Neb. 244, 56 N.W. 967; Labatt, Master & Servant, sec. 206. To entitle the plaintiff however, to recovery in this case, it was incumbent on him to introduce testimony tending to prove not alone the dangerous character of the animal causing the injury, but to show as well that defendant knew, or by the exercise of proper care and diligence might have known of the vicious and dangerous character of the horse. Knowledge, actual or constructive, on the part of the master is a constituent element of such negligence essential to create any liability. Labatt, Master & Servant, chap. 14, sec. 206. The testimony upon these branches of the case was as follows: Jennings who took the horse to defendant for sale, deposed as follows:
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