Moore v. American Express Company
Decision Date | 05 January 1915 |
Citation | 172 S.W. 416,186 Mo.App. 593 |
Parties | JOSEPH MOORE, Respondent, v. AMERICAN EXPRESS COMPANY, Appellant |
Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Thomas C. Hennings Judge.
Judgment affirmed.
Watts Gentry & Lee for appellant.
(1) The court erred in overruling this defendant's demurrers to the evidence. A servant injured by a vicious horse is entitled to recover from his master only in the event that the vicious disposition of the horse was known to the master or could have been known to him by the exercise of ordinary care, and was not known to the servant, and that the master failed to warn the servant of the disposition of the horse though he knew the servant was ignorant of it. On the other hand, if the servant knows the horse's disposition as well as his master does and continues in the employment, he cannot recover. Bessemer Land, etc., Co. v. Dubose, 125 Ala. 422; Leigh v. Railroad, 36 Neb. 131; Railroad v. Bresmer, 97 Pa. 103; Cooper v. Portner Brewing Co., 112 Ga. 894; Milby v. Dow Coal & Mining Co., 104 S.W. 860; Arkansas Smokeless Coal Co. v. Pippins, 122 S.W. 113; Eastman v. Scott, 182 Mass. 192; Wilson v. Mining Co., 16 Utah 392; Knickerbocker Ice Co. v. Finn, 80 F. 483; Wooster v. Bliss, 90 Hun 79; Wilson v. Doyle, 17 Sc. Sess. cases (4 Series), 62; Fraser v. Hood, 15 Sc. Sess. cases (4 Series), 178; Cooper v. Cashman, 190 Mass. 75; Stutzke v. Ice Co., 156 Mo.App. 1; 2 Cooley on Torts (3 Ed.), p. 693 (404); Inghams on Animals, sec. 94; Conn. v. Hunsberger, 25 L.R.A. (N. S.) 372; 4 Thompson on Neg., sec. 4041; Douglas v. Scandia Coal Co., 141 N.W. 960; Althardt v. Consolidated Coal Co., 165 Ill.App. 504; Armington v. Providence Ice Co., 33 R. I. 484; McGovern v. Fitzpatrick, 151 N.Y.S. 148. The same rule applies to other animals. Farley v. Picard, 29 N.Y.S. 802; Miller v. McKesson, 13 N.Y. 195; Clark v. Railroad, 179 Mo. 66. A servant cannot rely upon the master's assurance that a certain thing is all right, when the servant, by his own experience, knows positively that it is not all right and has better means of knowledge than the master has. Knorpp v. Wagner, 195 Mo. 637. The cases in this State allowing recovery by a servant for injuries caused by vicious animals owned by his master do not go the length contended for by plaintiff in this case and are not authority for upholding the verdict in the case at bar. They merely allow recovery where the master has notice and plaintiff has not. McCready v. Stepp, 104 Mo.App. 340; Stutzke v. Consumers' Ice Co., 156 Mo.App. 1. The rule in other States is the same. Miller v. Kelly Coal Co., 239 Ill. 626; Knickerbocker Ice Co. v. Finn, 80 F. 483; Arkansas Smokeless Coal Co. v. Pippins, 92 Ark. 138; Leigh v. Railroad, 36 Neb. 131. The objection to the application of the rule of assumption of risk which is usually made by our courts in cases of defective appliances is not available in such a case as this. A defective appliance can be thrown away or repaired, but a horse's disposition cannot be changed nor would it be right for the owner to sell the horse to another person without revealing what the horse's disposition was, and as soon as that fact was revealed, the prospective purchaser would decline to buy. It is necessary that the horse should be fed. Where the horse is as bad and vicious as plaintiff testified defendant's horse was and it was well known to plaintiff the risk of being kicked is a necessary risk incident to the feeding of such a horse. The Missouri courts, as well as all others, recognize the rule that a defendant assumes a risk of which he knows and which is not the result of negligence on the master's part. Clark v. Railroad Co. , 179 Mo. 66.
J. F. Coyle and Charles E. Morrow for respondent.
(1) The owner or keeper of a vicious animal such as a horse, after knowledge of its vicious disposition, is absolutely liable for any injury done by it to any person in a place where he has a right to be. The scienter is the gist of the action. It is not the mere keeping of a vicious animal, but keeping it with knowledge of its vicious propensities. Beckett v. Beckett, 48 Mo. 396; O'Neill v. Blase, 94 Mo.App. 663; Bell v. Leslie, 24 Mo.App. 670; Spring Co. v. Edgar, 99 U.S. 654; Clowdis v. Flume Co., 118 Cal. 315; Marsel v. Bowman, 62 Ia. 315; Muller v. McKesson, 73 N.Y. 195; Rogers v. Rogers, 4 N. Y. St. 373; 2 Cyc. 378, Am. & Eng. Ency. of Law (2 Ed.), 352, 353. Proof of negligence is not necessary. Fowles v. Shellabarger, 50 Mo. 558; Lynch v. McNally, 73 N.Y. 347; Muller v. McKesson, 73 N.Y. 195; Spring Co. v. Edgar, 99 U.S. 654; Strause v. Leipf, 101 Ala. 433, 23 L.R.A. 622; 2 Cyc. 368, 369. (2) It is well settled that a servant can recover for an injury caused by an animal which the master used as a part of his industrial appliances or kept on the premises for other purposes, and if it is vicious or in some other way dangerous to persons doing work by its agency or in its neighborhood and the master was or ought to have been aware of its bad qualities, the master is liable. O'Neill v. Blase, 94 Mo.App. 648; McCreaty v. Stepp, 104 Mo.App. 340; Stultze v. Consumers Ice Co., 156 Mo.App. 1; Cox v. Murphy, 82 Ga. 623; Knickerbocker Ice Co. v. Finn, 80 F. 483; Lehigh v. Railroad, 36 Neb. 131; Hammond v. Johnson, 38 Neb. 244; 1 Labatte on Master and Servant, sec. 266; 26 Cyc. 1113; Nooney v. Pacific Express Co., 208 F. 274. (a) The defendant's superintendent had actual knowledge of the vicious disposition of the horse and was guilty of negligence in ordering plaintiff to feed the horse by going in the stall from behind and to the side of it. Jones v. American Warehouse Co., 137 N.C. 337; 26 Cyc. 1153. (b) The defendant placed the plaintiff in a position of unusual hazard by instructing him to feed the horse in question, and it was defendant's duty to adopt every reasonable precaution to avoid injury to plaintiff. Defendant should have placed the horse in a box stall where it could have been fed with safety. Claybaugh v. Railroad, 56 Mo.App. 630; Rickhoff v. Heckman, 7 N.Y.S. 417; Mack v. Railroad, 123 Mo.App. 531; Jerrel v. Blackburg Block Coal Co., 154 Mo.App. 552. (3) Whatever may be the law in other jurisdictions, the doctrine of assumed risk in Missouri is of narrow compass. The servant rever assumes the negligence of the master. Kelly v. Railroad, 105 Mo.App. 383; Blanton v. Dole, 109 Mo. 64; Curtis v. McNair, 173 Mo. 270; Daken v. Chase & Sons Mer. Co., 197 Mo. 238; George v. Railroad, 225 Mo. 264. Even under the strict rule followed by the Federal courts plaintiff did not assume the risk. Nooney v. Pacific Express Co., 208 F. 274. (a) The defendant's superintendent negligently ordered the plaintiff to feed the horse in question in the manner in which he did feed it, and by his assurance lulled plaintiff into a sense of security to conclude that he could do so without being injured. Such an order and assurance absolves plaintiff from contributory negligence and he does not assume the risk. Nooney v. Pacific Express Co., 208 F. 274; Fogus v. Railroad, 50 Mo.App. 263; Buckner v. Stock Yards Co., 221 Mo. 700; Holman v. Souther Iron Co., 152 Mo.App. 672; Bennett v. Crystal Carbonate Co., 146 Mo.App. 565; Schlavick v. Friedman-Shelby Shoe Co., 157 Mo.App. 83; Bloomfield v. Worster Construction Co., 118 Mo.App. 254; Smith v. Kansas City, 125 Mo.App. 150; Erwin v. Tel. Co., 173 Mo.App. 508. (b) At least it was the duty of the defendant as master to provide the servant with a reasonably safe way to feed the horse in question, namely, as shown by the evidence, a box stall where the plaintiff would not be required to go behind and to the side of the horse. This was surely a safe method. The plaintiff objected to feeding the horse in the manner directed, but was overruled by defendant's superintendent. The failure to so provide a safe method is negligence on the part of the defendant which the plaintiff did not assume. Fogus v. Railroad, 50 Mo.App. 263; Adolff v. Columbia, etc., Co., 100 Mo.App. 208; Mack v. Railroad, 123 Mo.App. 531.
--This is a suit for damages accrued to plaintiff on account of personal injuries received through being kicked by defendant's horse, and it proceeds on the grounds of negligence. Plaintiff recovered and defendant prosecutes the appeal.
It appears that plaintiff was in the employ of defendant at its stables, and his duties pertained to cleaning harness and feeding a number of defendant's horses. Among the horses assigned to plaintiff to be fed was one known as No. 57. The evidence tends to prove that this horse was vicious, in that it would kick and bite and jump on occasions. There is an abundance of evidence tending to prove that McGowan defendant's superintendent, was aware of the vicious disposition of the horse and that he had been notified of it several different times. It appears, too, that plaintiff was apprised of the same facts, for he states that he was present when the horse kicked at a negro employee of defendant some months before, and he also heard the negro complain to McGowan, the superintendent, concerning the fact. Plaintiff also says that he had heard one Watrow complain to the superintendent that the horse had kicked at him on another occasion. He also knew the horse kicked one time near the Union Station. Shortly before plaintiff was injured, he had a talk with McGowan, the superintendent, after Watrow was kicked and suggested that McGowan have the horse placed in a box stall where he could feed him without danger of being kicked, and McGowan said, "You go on and take care of that horse in the stall; all you have to do is to be careful, you won't be hurt." A few weeks thereafter, while plainti...
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