Nooney v. Pacific Express Co.

• Decision Date: 01 October 1913
• Docket Number: 3,880.
• Citation: 208 F. 274
• Parties: NOONEY v. PACIFIC EXPRESS CO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

208 F. 274

NOONEY v. PACIFIC EXPRESS CO. ^[1]

No. 3,880.

United States Court of Appeals, Eighth Circuit.

October 1, 1913

In an action for injuries to a servant by being kicked by a young horse he was directed to drive at a single rig, evidence held to sustain a finding that defendant was negligent in assigning the horse to plaintiff to drive without his being properly broken to the city.

Ford W Thompson, of St. Louis, Mo. (W. B. Thompson, of St. Louis Mo., on the brief), for plaintiff in error.

Moses N. Sale, of St. Louis, Mo. (J. L. Minnis, of St. Louis, Mo on the brief), for defendant in error.

Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge.

The plaintiff was the driver of one of defendant's express wagons in the city of St. Louis. The defendant purchased a horse in the country, six years of age, 16 hands high, weighing about 1,250 pounds. The horse had never been city broke. It was brought to St. Louis in a car, and taken to defendant's barn. On the way to the barn it showed great fear of street cars and automobiles. In accordance with defendant's practice, this horse was first hitched up with an experienced horse, to a double express wagon weighing about 3,300 pounds. It was driven in this way for two days. Then plaintiff was directed by the foreman of the stable to hitch the horse to a single wagon, and use it in the distribution of express matter. As a safeguard the superintendent directed an experienced driver to accompany the plaintiff. On the first day the horse behaved badly, plunging and rearing, sometimes leaping upon the curbing, and at one time nearly leaping into another carriage. Owing to the terror of the horse, whenever possible the plaintiff drove along alleys where street cars and automobiles would not be encountered. Upon returning to the stable about noon of the first day, plaintiff was asked by the superintendent how the horse behaved, and explained to him its behavior. The superintendent then directed the plaintiff to try the horse for another day in company with the same driver. On this day the horse continued to behave badly. When all the parcels had been delivered but the last, the journey led along Laclede avenue, upon which a double street car track is laid. A car was approaching from the opposite direction in which the plaintiff was driving. At the point where he was about to meet the car, there was another horse and wagon standing next to the curbing, so the plaintiff was obliged to swerve out towards the track upon which the car was approaching. The horse was greatly frightened by the car, reared on its hind legs, so that it nearly fell over backward, and when it came down it kicked with its hind feet, striking plaintiff's foot and ankle, producing the injury for which the action was brought. This was the first time that the horse had kicked. The horse was used by the defendant for one more day in a double rig, and then returned to the country. At the conclusion of plaintiff's case showing these facts, the court directed a verdict in favor of defendant, and plaintiff brings error.

Defendant contends that this case falls within the ancient rule of the common law that in order to make a master liable for injury caused by the vicious conduct of a domestic animal, the master must have known of the vicious character of the animal-- that every horse...