Nikolas v. Kirner, 48810

• Decision Date: 15 November 1955
• Docket Number: No. 48810,48810
• Citation: 247 Iowa 231,73 N.W.2d 7
• Parties: Donald NIKOLAS, Appellant, v. Joe KIRNER, Appellee.
• Court: Iowa Supreme Court

Page 7

73 N.W.2d 7

247 Iowa 231

Donald NIKOLAS, Appellant, v. Joe KIRNER, Appellee.

No. 48810.

Supreme Court of Iowa.

Nov. 15, 1955.

B. C. Sullivan, Rockford, and Zastrow, Noah & Smith, Charles City, for appellant.

Donohue & Wilkins, New Hampton, for appellee.

LARSON, Justice.

This action at law was commenced by plaintiff, an experienced jockey or horseman, against the defendant owner of a race horse named Danny Meade, for injuries the plaintiff received while exercising the horse. The trial court directed a verdict for defendant at the conclusion of plaintiff's evidence, and plaintiff appeals. The motion to direct was sustained generally as to all grounds, but the complaint made to us is that the court erred in holding (1) as a matter of law that plaintiff was not an employee of defendant at the time of the accident, (2) that the question of defendant's negligence was not a question for the jury, and (3) under the circumstances that plaintiff assumed all the risks, hazards and dangers at that particular time. Plaintiff had alleged he was an employee of the defendant, that the horse he was asked to exercise was a dangerous animal, that the defendant had knowledge of that fact but did not warn plaintiff of it, and that at the time in question the defendant was negligent in jerking a rope, attached to the horse's neck, in such a manner as to excite the animal and cause it to rear backwards and fall upon him.

The plaintiff Donald Nikolas, age 22, had ridden Danny Meade in several races two or three years before, but had not mounted it since that time. From his past experience he believed the animal gentle and quiet, as race horses go, and agreed to ride the horse in a race at Mason City the following week. As the horse had been on pasture, it was suggested by defendant that plaintiff come over to exercise it prior to the race. On the evening of August 13, 1952, plaintiff came unannounced to defendant's home in Chickasaw County for that purpose. He brought his own saddle. Upon his arrival he found defendant already exercising the riderless horse at the end of a long rope. Danny Meade was brought into the barn, saddled, and again taken to the exercise lot. At that time plaintiff testified he said 'Remember, Joe, I got to get paid for this' and Joe said 'All right.' There was also a previous conversation as to the manner of payment, which will be referred to later. When plaintiff, defendant, and the horse reached the exercise lot, plaintiff asked about the strange hitch which he said the defendant placed upon the animal. There was a short rope or strap from the briddle or bit ends to the saddle, and another long one connected through the halter ring and around the horse's neck. Plaintiff testified his suspicions were aroused by this hitch and he asked defendant three times if the horse was all right and whether or not anything had happened to it since plaintiff had last ridden it. Defendant had answered assuring him the horse was 'all right' and thereupon plaintiff mounted the animal. It stood quietly. Then defendant started out ahead of the horse with the long lead strap. Plaintiff objected and said he twice called to defendant to come back and start out by walking beside the animal while close to its head. However, defendant did not come back but walked on out about 25 feet from the horse and rider, turned around, raised his arms and pulled or jerked upon the lead rope. This brought pressure behind the animal's ears, and the horse, which had been standing quietly, came up on its back legs, lost its balance, and fell upon the plaintiff, injuring him. Plaintiff's father and mother were immediately called to the scene and testified that they asked defendant if he put the boy on a wild and vicious animal, and to the question 'Was he wild?' defendant said 'Yes, but--' and to the question 'Did you tell Donald about it?' he said 'No, I didn't.' There also was testimony as to the injury plaintiff suffered, which we need not consider at this time except to say the testimony, if believed, indicated it was of a serious and permanent nature.

I. The principal question is, in the light of all the facts and circumstances, was the issue of defendant's negligence for the jury to decide. If reasonable minds might reach different conclusions on the issue, it should have been submitted to the jury. O'Reagan v. Daniels, 241 Iowa 1199, 44 N.W.2d 666, and cases cited therein.

II. In view of the fact the trial court sustained the motion for a directed verdict at the close of plaintiff's testimony, the evidence must be considered in the aspect most favorable to the plaintiff and we must accord to him the benefit of all proper inferences. Cable v. Fullerton Lbr. Co., 242 Iowa 1076, 49 N.W.2d 530; Hahn v. Strubel, 243 Iowa 438, 446, 52 N.W.2d 28, and cases cited therein; O'Reagan v. Daniels, supra.

III. While defendant contends he and plaintiff were engaged in a joint purpose, i. e. taking their horses to county fair races, there is evidence tending to substantiate plaintiff's claim that he was specially employed to exercise Danny Meade before the Mason City race. Plaintiff testified: 'Joe Kirner asked me if I was going to take my horse to the Mason City fair which was coming up and I told him I was because the horse was running pretty good. * * * Joe said, 'We'll get Danny Meade and we'll have a load and you come down and work him out two or three times before we go.' * * * I told Joe I would have to get paid for it because I couldn't afford to buy gas to drive down if I didn't get paid for it and he said, 'Yes, I expected that." Other conversation was related as to how plaintiff was to be paid, but we think these facts and the fair inferences the jury might draw therefrom were sufficient to permit the jury to decide whether there was such employment here as to burden the defendant with the quite well settled legal responsibilities of master to servant. At least the relationship shown did obligate defendant to use due care in the protection of plaintiff from any dangers known to defendant, and to do no negligent act himself which would likely cause plaintiff injury or harm.

IV. Plaintiff stoutly contends defendant was negligent (1) in not warning him the horse was wild and dangerous, (2) in not walking beside the animal's head for a little distance after plaintiff mounted before going out to the end of the 25 foot lead rope, and (3) in walking out ahead of the animal for some distance, then turning around, raising his arms, and giving the lead rope 'a good jerk.' These negligent acts, he further alleges, were done despite his objection and warning, and resulted in the horse's rearing up on its hind legs. He contends that because its head was checked down with the short strap, when it reared up it naturally lost its balance and fell backwards, crushing plaintiff under its weight. After plaintiff mounted and defendant started to walk away ahead of the horse, plaintiff testified he said 'Don't, Joe come on back,' but that Joe paid no attention to him and went on out to the end of the rope and then jerked on it. He also testified: '* * * when you do something like that and when you get out and jerk, that horse is going to do something, and when he jerked Danny came up. * * * if he would have stayed by that horse, I'll bet you anything that horse would have gone right straight out.'

It is true the servant assumes the risks that naturally pertain to his work, but he is under no obligation to assume any risks caused by the master's failure of duty. Anderson v. Sheuerman, 232 Iowa 705, 708, 6 N.W.2d 125. Certain risks and dangers naturally inhere in the work plaintiff was doing, as race horses are known to be more or less spirited, but plaintiff must not be held to have also assumed all risks which may result from defendant's negligence or breach of duty. Laws v. Richards, 210 Iowa 608, 611, 231 N.W. 321, and cases cited therein.

Was this risk one which was ordinarily...