Smith v. Benson's Wild Animal Farm

• Decision Date: 30 November 1954
• Citation: 109 A.2d 39,99 N.H. 243
• Parties: Gordon SMITH, by his father and next friend, et al. v. BENSON'S WILD ANIMAL FARM, Inc.
• Court: New Hampshire Supreme Court

Page 39

109 A.2d 39

99 N.H. 243

Gordon SMITH, by his father and next friend, et al. v. BENSON'S WILD ANIMAL FARM, Inc.

Supreme Court of New Hampshire.

Argued Oct. 6, 1954.

Decided Oct. 29, 1954.

Rehearing Denied Nov. 30, 1954.

Aaron A. Harkaway and Morris D. Stein, Nashua, for plaintiffs.

Wyman, Starr, Booth, Wadleigh & Langdell, Manchester, and Stanton E. Tefft, Manchester, for defendant.

LAMPRON, Justice.

Considering the evidence for the plaintiffs as true and most favorably to them, French v. York, 99 N.H. 90, 91, 105 A.2d 749 it appears the jury could find the following: Sometime in April 1949, Gordon Smith, eight years of age, was kicked in the back of the right knee by a rather large pony (about 5 feet 2 inches in height). The incident occurred 'down in back of the barn' on land leased to Benson's and maintained by it for the occupance of its general manager and its superintendent as part of their compensation. The barn thereon was used as a garage for its beach wagon used exclusively by Mrs. Vera Lovejoy, a stockholder as well as its treasurer and general manager. Ropes and cages owned by it were also stored therein.

Mrs. Lovejoy purchased the pony involved and obtained the following receipt: 'Received of Vera Lovejoy of Benson Wild Animal Farm Twenty Dollars for one Pony 'Trigger' A.E. Feb. 15, 1949' the pony was kept in a box-stall on the animal farm operated nearby by the defendant until the first part of April when it was moved over to the barn on the premises in question. Because the stall therein was not suitable, Mrs. Lovejoy assigned Benson's regular carpenter to repair it. For the two days during which the repairs were being made the pony was tied to a tree in back of the barn in an area used for parking by the animal farm.

This area had been used by children as a playground for about forty years. The plaintiffs lived about four or five houses therefrom. Robert (Bobby) Lovejoy, son of defendant's general manager, 12 years old at the time of the accident, played there before and after that day with other children including Gordon Smith and he also played at 'other people's places'. The Lovejoys had been living there since 1945. Gordon played with Bobby before and after the accident in the common 'right across from Lovejoys' as well as down in back of the barn. He had been in the barn where he watched Bobby clean out the stall.

On the day of the accident Gordon 'was going to go by the school' when he saw a boy go around the Lovejoy house and he followed him. He did not see the pony until after he was kicked. The pony had a halter and was tied by a rope to a tree in back of the barn. The rope was more than twenty or thirty feet in length.

Gordon was first examined by Dr. Spring on May 22, 1949. He was operated on in 1950 for what is called Legg's disease. Dr. Spring who assisted in the operation thinks 'very definitely that an injury to the leg by a blow on the back of the knee would be a sufficient causative injury for this particular type of pathology in this boy.'

The above facts would justify a finding by the jury that Gordon Smith received the injuries complained of as a result of being kicked in the back of the knee on the day in question by a pony owned or controlled by Benson's which was tied on premises in its possession and control.

The plaintiffs do not claim that this pony was vicious. Their right of recovery is based on negligent conduct by the defendant. Connell v. Putnam, 58 N.H. 335. 'In order to make out a case for the jury the plaintiff was bound to produce evidence of some relationship between the parties which would impose upon the defendants a duty of exercising...