Rabbach v. Pelican Ice Co., Limited

• Decision Date: 11 June 1917
• Docket Number: 21415
• Citation: 76 So. 160,141 La. 952
• Court: Louisiana Supreme Court
• Parties: RABBACH v. PELICAN ICE CO., Limited

76 So. 160

141 La. 952

RABBACH v. PELICAN ICE CO., Limited

No. 21415

Supreme Court of Louisiana

June 11, 1917

Rehearing Denied June 30, 1917

SYLLABUS

(Syllabus by the Court.)

Where defendant shows that the animal which inflicted damages upon plaintiff was not vicious and plaintiff fails to prove fault on the part of defendants, his action must fail.

Lazarus Michel & Lazarus, David Sessler, and Edward P. Kleinert, all of New Orleans, for appellant.

Philip S. Gidiere, of New Orleans, for appellee.

OPINION

SOMMERVILLE, J.

Plaintiff alleges that while in the employ of the defendant as driver that he was instructed by the foreman of said corporation to feed the mules, and 'that while doing so a certain mule belonging to the defendant company did suddenly, violently, and maliciously attack your petitioner, knocking him down, kicking him on the head, knee, and body; that while being down and kicked by said mule, and being unable to extricate himself, your petitioner called to the said foreman for his assistance, which he refused and failed to render; that because of said injury he was injured to the extent of $ 10,021.50, for which he asks judgment against defendant.'

Defendant answered that plaintiff had voluntarily offered to assist the foreman in feeding the mules, and while thus engaged the animal referred to became frightened and knocked plaintiff down and stepped upon him; but it denies that its foreman refused to go to plaintiff's assistance while he was down. Respondent avers that the mule which injured plaintiff was not known to be vicious, and that he was not vicious; that the injuries sustained by plaintiff were due to the fact that the mule was frightened by plaintiff as he entered the stall and, because of its fright, knocked the plaintiff down and stepped upon him. Defendant denies all fault on its part.

There was judgment for defendant, and plaintiff has appealed.

The evidence is to the effect that plaintiff was the driver of the mule which injured him in the manner set forth in his petition; and that it had picked up a nail, and had been in its stall for several days. If, therefore, the mule was a vicious animal such fact was as well known, or perhaps better known, to plaintiff than to defendant. It was plaintiff's duty to have been cautious and careful while feeding said animal. The evidence shows, as alleged by plaintiff in his petition, is to the effect that plaintiff...