Williams v. Hofer

• Decision Date: 23 March 1948
• Docket Number: 30254.
• Citation: 191 P.2d 306,30 Wn.2d 253
• Parties: WILLIAMS v. HOFER et ux.
• Court: Washington Supreme Court

191 P.2d 306

30 Wn.2d 253

WILLIAMS v. HOFER et ux.

No. 30254.

Supreme Court of Washington

March 23, 1948

Department 2

Action by Claude R. Williams against George Hofer and Freda Hofer his wife, for injuries when defendant directed plaintiff to ride an unmanageable horse in herding cattle on defendant's farm. From an adverse judgment, defendants appeal.

Judgment affirmed.

Appeal from Superior Court, Walla Walla County; B B. Horrigan, Judge.

Bernard J. Lehrer, of Walla Walla, for appellant.

Cameron Sherwood and Herman H. Hahner, both of Walla Walla, for respondent.

STEINERT Justice.

Plaintiff Claude R. Williams, brought suit to recover damages for personal injuries alleged to have resulted from the negligent acts and omissions of the defendants, George Hofer and Freda Hofer, husband and wife.

The complaint alleged that plaintiff was employed to do general farm work on land owned by the defendants; that while so employed, on the day of the accident here involved, he was directed George Hofer, to whom we shall hereinafter refer as though he were the sole defendant, to use for riding purposes a certain horse in herding cattle upon defendant's farm; that the horse was vicious, unmanageable, and not broken to riding, as the defendant well knew, or in the exercise of ordinary care, prudence, and caution should have known; that defendant failed to inform plaintiff of the vicious qualities of the horse, although defendant well knew that plaintiff was wholly ignorant of the character of the animal and the dangers incident to riding it on the particular occasion; that defendant then and there stated and represented to plaintiff that the horse was in fact broken to riding, which statement defendant knew, or in the exercise of ordinary care should have known, to be untrue; that thereupon plaintiff mounted the horse, which, after proceeding a short distance under plaintiff's guidance, balked and reared, and thereafter continued so to do, with the result that plaintiff was thrown violently to the ground and severely injured.

Defendant by answer denied each and every allegation of the complaint, and further set up, as affirmative defenses, contributory negligence and assumption of risk on the part of plaintiff which the latter in turn denied.

The cause was tried to a jury. At the conclusion of plaintiff's evidence, the defendant moved for a nonsuit, which was denied. The defendant then rested without introducing any evidence in his behalf. The jury returned a verdict in favor of plaintiff, and, after denial of defendant's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, the trial court entered judgment on the verdict. Defendant appealed.

Appellant assigns as errors the rulings of the trial court (1) in denying his motion for nonsuit; (2) in denying his motion for judgment notwithstanding the verdict or for new trial; (3) in refusing to give an instruction requested by him; (4) in giving instruction No. 6; (5) in giving instruction No. 9; and (6) in refusing to grant appellant's motion for mistrial.

The first two assignments of error present the question of whether the evidence introduced by the respondent was sufficient to make a case for the jury and to support the verdict subsequently rendered by it.

A motion for nonsuit or a motion for judgment notwithstanding the verdict admits the truth of the evidence of the party against whom the motion is made and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the moving part and in the light most favorable to the opposing party. Billingsley v. Rovig-Temple Co., 16 Wash.2d 202, 133 P.2d 265, and cases therein cited; Fiskaa v. Miller, 27 Wash.2d 242, 177 P.2d 707.

Another rule, frequently expressed by this court, is that in ruling upon a challenge to the sufficiency of the evidence, a motion for a directed verdict, or a motion for judgment notwithstanding the verdict, no element of discretion is involved, and such motions can be granted only when it can be held as a matter of law that there is no evidence nor reasonable inference from evidence to sustain the verdict. Knight v. Trogdon Truck Co., 191 Wash. 646, 71 P.2d 1003; Graham v. Police & Firemen's Ins. Ass'n, 10 Wash.2d 288, 116 P.2d 352.

With these rules in mind, we shall state the facts as the jury was entitled to find them from the evidence.

Appellant owned a ranch, or farm, in Walla Walla county and had operated it about four years at the time of the event here involved. Operations on the farm included the aising of beef cattle. Respondent, aged fifty-seven years, was employed by appellant as a general farm hand, doing whatever was necessary to be done on the place, particularly ploughing, planting and harvesting crops, repairing fences, brubbing brush, and looking after the cattle. He had worked for appellant in that general capacity for the greater part of a period of three years.

To look after the cattle properly it was necessary to use a horse. Respondent was the only person on the ranch who was experienced in riding horses. Although appellant himself had done some horseback riding, he was not an experienced rider.

A riding horse which the appellant formerly owned and which respondent had customarily used in rounding up the cattle was sold by appellant about six months prior to the accident here in question. Thereafter, for the time being, respondent, in caring for the livestock, was required to travel on foot. This proved exceedingly difficult and inexpedient. As respondent expressed it, 'Chasing the cattle on foot, I had an awful time corralling them.' On one recent occasion the cattle had gotten away by swimming to the opposite side of a river, thus frustrating the attempt to corral them. For these reasons, respondent requested appellant to purchase another horse with which the cattle could be herded, and cautioned him to get a 'perfectly gentle horse,' one that appellant himself could ride. Appellant agreed to do so.

Shortly thereafter, on a Friday, appellant attended an auction sale in Walla Walla and there purchased the horse which is involved in this action. Appellant did not know the former owner of the horse nor anything about him except that he lived in Waitsburg. It does not appear from the evidence that appellant made any inquiry as to the character of the horse, its habits, or its adaptability for riding. Respondent was not present when the horse was purchased, nor did he have any prior knowledge concerning it. Later that day, appellant reported the purchase to respondent, describing the horse, saying that he had seen it being ridden around in the auction ring, and assuring respondent that the horse was 'broken to ride.'

On the following day, Saturday, respondent and appellant brought the horse, in a truck, from Walla Walla to the ranch, where, for the next three days, respondent took care of the animal, feeding, watering, and stabling it, but not attempting to ride it. During that period, he had no difficulty whatever with the horse, and, so far as he could tell, it was gentle in every way.

On Tuesday, three days later, appellant announced to the respondent that the cattle, which had been out for about two weeks, were to be rounded up. Pursuant to the previous understanding with reference to the use of the horse, respondent brought it from the stable and, in the presence of appellant, saddled and mounted it. Starting forth, the horse proceeded a distance of about fifty yards and then balked, putting its head down and going around slowly in a circle. Respondent pulled on the neck reins, but found that the horse was not broken to respond to that method of control. He then gave the animal a light slap over the rump with the reins and in this manner brought it 'out of the balk.'

The horse straightened up and went forward for about a hundred yards, and then repeated the previous performance. Respondent again struck it lightly with the reins and once more succeeded in bringing it out of the balk. There was nothing about either of these two incidents to cause respondent any apprehension, since the horse gave no indication that it was unmanageable.

However, after proceeding about a hundred yards further, the horse suddenly went into a third balk, and, this time, began twisting and bucking from one side to the other, and then, by rearing and lunging forward, threw respondent to the ground, thereby breaking his arm and otherwise bruising him severely. The horse continued bucking for several hundred yards and then ran away. It was not recaptured until several days later. Appellant thereafter sold the horse because it was evidence to him that it was unmanageable.

The evidence in the case was clearly sufficient to warrant the jury in finding, as we must assume that it did find, that the horse was not broken to riding, was unmanageable, and possessed a vicious tendency to balk, twist, buck, rear, and lunge whenever an effort was made to ride it.

Although no case arising in this state, similar in fact to the one presented here, has been called to our attention, there are many cases from other jurisdictions involving the question of the employer's liability for injuries which an employee has sustained from animals belonging to the employer, particularly animals furnished by the employer for performance of work by his employee.

The general rule adopted and followed by the courts is that where a servant is required to use a horse in the performance of his work, it is the duty of the master to exercise reasonable care to furnish to the servant a reasonably safe horse with which to perform the work, and that, in case of injury to the servant, the master will be held liable for...