Thornton v. Layle

• Decision Date: 22 April 1908
• Citation: 111 S.W. 279
• Parties: THORNTON v. LAYLE.
• Court: Kentucky Court of Appeals

111 S.W. 279

THORNTON v. LAYLE.

Court of Appeals of Kentucky.

April 22, 1908

Appeal from Circuit Court, Owen County.

"Not to be officially reported."

Action by George W. Thornton against John Layle. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

W. B Moody and H. G. Botts, for appellant.

John W Douglas and Clore, Dickinson & Clayton, for appellee.

BARKER J.

The appellant (plaintiff) was gored by the appellee's (defendant's) cow while he was trying to milk her; and to recover damages for the injuries received he instituted this action. Upon the trial before a jury the court, after the evidence for the plaintiff was in, awarded a peremptory instruction requiring the jury to find for the defendant. This appeal questions the correctness of that ruling.

The evidence showed that the defendant, an old man of about 70 years of age, was the owner of two Jersey cows, which he had raised and which he had theretofore habitually milked himself. On the occasion involved here the defendant wished to be absent from his home for several days, and, that his cows might be regularly milked during his absence, he employed the plaintiff, his neighbor, to perform this service for him. The plaintiff in his testimony deposed substantially that, when the plaintiff was negotiating with him to do the milking, he (defendant) told him (plaintiff) that the cows were perfectly gentle; that he (plaintiff) knew nothing of them himself; that, relying upon the assurance of the defendant, he went to the latter's home and tried to milk the cows; that, when he went into the stall where one of them was, it immediately turned on plaintiff, and fiercely gored him in the stomach or bowels, inflicting very serious wounds, the direct effect of which was to necessitate a very painful surgical operation to be performed, and from which he was permanently injured. It is not necessary to set forth the evidence of the extent of plaintiff's injuries on this appeal, as there can be no doubt that it establishes the infliction of very painful wounds, and, perhaps, permanent impairment of his power to earn money.

James Brown testified for the plaintiff that some time before plaintiff was hurt he went to Layle's house to return a wagon he had borrowed from him, and was told to put it in the barn lot. He did so, but, when he drove into the lot, the cows threw down their heads and bellowed, and their actions were such that he told the defendant he thought they were wild and spiteful, but the defendant said: "You are a stranger to them. They are afraid of strangers, and act that way." Everett Raisor testified that he was called in by the plaintiff after he was hurt, and, among other things, said: "We tried to get the cows in the stalls by taking a gate and holding it in front of us, but we had no sooner gotten in view of the cows than they made at us, and we had to run and drop the gate." S. S. Thornton testified that he was present when Mr. Layle employed the plaintiff to milk the cows for him, and in part said: "George [plaintiff] asked him [defendant] if the cows were gentle, and Mr. Layle said they were perfectly gentle."

In addition to the foregoing evidence, it was shown that the next morning after the plaintiff was gored he sent for James Samford, a son-in-law of the defendant, who lived nearby, and the witness was asked...