Rector v. Southern Coal Co.

• Decision Date: 31 December 1926
• Docket Number: 561.
• Citation: 136 S.E. 113,192 N.C. 804
• Parties: RECTOR v. SOUTHERN COAL CO.
• Court: North Carolina Supreme Court

136 S.E. 113

192 N.C. 804

RECTOR v. SOUTHERN COAL CO.

No. 561.

Supreme Court of North Carolina

December 31, 1926

Appeal from Superior Court, Buncombe County; Harding, Judge.

Action by Sam Rector against the Southern Coal Company. On his death Mrs. Sam Rector, administratrix, was substituted as plaintiff. Judgment for plaintiff, and defendant appeals. Reversed.

Evidence of employer's knowledge of viciousness of mule injuring employee held insufficient for jury.

The plaintiff, Sam Rector, instituted an action against the defendant for damages sustained by reason of being struck by a mule. The plaintiff died pending the action, and his wife was appointed administratrix and came into court and adopted the complaint filed in the lifetime of her husband.

Deposition of the deceased was taken prior to his death, in which he testified:

"I was employed to do most everything. I fed horses, took care of the barn, chickens, shoveled coal, sawed wood, and just general work. *** It was my duty to gather the eggs laid by the chickens and deliver them to the Southern Coal Company's office. *** In April, 1924, the company had something like 12 to 20 mules. *** The mules were kept in the stables when they were not at work. The stalls and stables where the mules stood were arranged to head into each other along the walls, and when the mules were in the stalls the back was open. In going into the stalls, it was necessary to pass by where you had a mule in the stall. *** In April, 1924, the superintendent gave me orders to gather eggs for Mr. Shepherd, on which date the coal company had a mule of vicious habits in one of its stalls. I cannot tell you now exactly what the vicious habits of the mule were. *** If you touched it or went to go by it it would whirl to get away, and, if it could, it would catch you. If you got away, you were lucky, and if you didn't you had to take it. It was just generally skittish and scared to death all the time. *** I told Mr. Parker (man in charge of the stables and mules) that old mule was dangerous, and that it would kill somebody some of these days, and he said it had no sense. Mr. Parker told me he would try to get rid of a lot of the mules, but I can't say whether he picked out that identical mule or not."

On the day of his injury the plaintiff was told by his foreman to see if he could find a setting of eggs for a customer. The hens laid in all of the stalls where the mules were kept. The plaintiff took a basket to gather the eggs, and, after going into one or two stalls, went to the stall where the mule in controversy was.

The plaintiff testified further:

"After I came to the stall and just after I come to this one, I started in, and said 'Whoa,' and this vicious mule was so quick it knocked the breath out of me. *** It caught me with its rump against a 4x4 post and my back against that post-caught me and pinned me back and just shut my breath off. *** So far as my duties in taking care of horses and mules were concerned, I knew what to do. *** I had been familiar with the care of horses and mules part of my life, but had not been fooling with them for about six or seven years, but back of that time I had been. I had worked mules on the farm most of my life and was pretty well familiar with mules. *** I know that mules don't have the intelligence of horses. *** I don't know of any other bad or vicious act committed by the mule except the injury received by me. He nearly ran over me two or three times before. *** That mule had never injured any other person to my knowledge. If it did injure any person during the time I had charge of it, I don't remember. *** It was not necessary for me to pass by the hips of the mule in order to gather the eggs, as I could have gone around, untied the mule, and driven it out of the barn, but I never thought of it in that way."

Another witness for plaintiff testified:

That at the time Rector was injured "this mule was in his stall jumping, and as Rector went in by the side it jumped against him and knocked him against the wall. After Rector went out the mule was kicking at a cow in the third back stall. The mule jumped against his chest, and the hips of the mule jumped against the chest of Rector, and Rector was mashed against the wall of the partition of the stable. *** The mule was jumping, and he spoke to the mule after he started in and went up to the other side, and, as he did so, the mule's hips caught him against the wall."

Issues of negligence and contributory negligence and damages were submitted to the jury and were answered in favor of the plaintiff in the sum of $600.

From judgment rendered upon the verdict, the defendant appealed.

Weaver & Patla, of Asheville, for appellant.

Geo. M. Pritchard and Thomas S. Rollins, both of Asheville, for appellee.

BROGDEN J.

The question of law presented by this case is, what duty does the owner of a mule owe to an employee who has charge of the mule and who goes into the stall where the mule is? A mule is a melancholy creature. It is a nullius filius in the animal kingdom. It has been said that a mule has neither "price of ancestry nor hope of posterity." Josh Billings remarked that if he had to preach the funeral of a mule he would stand at his head. Men love and pet horses, dogs, cats, and lambs. These domestic animals have found their way in literature. Shakespeare said of a horse:

"I will not change my horse with any that treads but on four pasterns; when I bestride him I soar, I am a hawk; he trots the air; the earth sings when he touches it." But nobody loves or pets a mule. No poet has ever penned a sonnet or an ode to him, and no prose writer has ever paid a tribute to his good qualities. He is kicked and cuffed, and beaten and sworn at, and frequently underfed and forced to work under extremely adverse conditions; yet, withal, he has a grim endurance and a stubborn courage which survives his misfortunes and enables him to do a large portion of the world's rough work. It is a matter of common knowledge among men who know mules and deal with them that they are uncertain, moody, and morose. This particular mule, charged with injuring plaintiff, was referred to in the oral argument as an "unsafe mule" and as an "unsafe tool and appliance." The idealist may dream of the day when the "world is safe for democracy," but this event will perhaps arrive long before the world will be safe from the

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