Williams v. Pevely Dairy Co.

• Decision Date: 01 June 1926
• Docket Number: No. 19401.,19401.
• Citation: 285 S.W. 149
• Parties: WILLIAMS v. PEVELY DAIRY CO.
• Court: Missouri Court of Appeals

285 S.W. 149

WILLIAMS v. PEVELY DAIRY CO.

No. 19401.

St. Louis Court of Appeals. Missouri.

June 1, 1926.

Rehearing Denied June 24, 1926.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Action 'by Oscar Williams against the Pevely Dairy Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. D. Moser and Marsalek, Stahlhuth & Godfrey, all of St. Louis, for appellant.

Mark D. Eagleton and Everett J. Hullverson, both of St. Louis, for respondent.

DAUES, P. J.

This is an action for damages for personal injuries sustained by plaintiff while employed by defendant as a hostler in defendant's stable. Plaintiff recovered a verdict and judgment for $7,500, and defendant has appealed.

The petition alleges that plaintiff was kicked by a mule owned and used by defendant in the dairy business; that the mule was mean, vicious, and unruly, and likely to kick and injure persons, which fact the defendant knew, or by the exercise of ordinary care should have known; that on May 5, 1924,. plaintiff, while engaged in his duties as an employee in the stable, was kicked and injured by said mule. Defendant's negligence is alleged as a failure to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work, or with a reasonably safe mule at and near which to work; that the mule had mean propensities and was not reasonably safe. Second, a negligent order of defendant which required plaintiff to be around the mule, and that defendant negligently assured plaintiff that he could work there with reasonable safety to himself, although defendant knew, or should have known, that said mule was dangerous and likely to kick. Third, that defendant permitted the mule to occupy an open stall, when a closed stall was near by and which could have been used for that purpose. Fourth, defendant's failure to warn plaintiff of the disposition of the mule and the dangers incident thereto. Fifth, defendant negligently failed to exercise ordinary care to discover the disposition and propensities of the mule, and that he was dangerous and not reasonably safe.

The answer is a general denial.

The case was submitted to the jury on the allegations that defendant furnished a mule which was unsafe because it was unruly and possessed a disposition to kick, and negligently kept the mule in an open stall instead of a box stall.

The facts may be briefly stated, taking them from the record as appear most favorable to the verdict. Plaintiff, a man about 35 years of age, while employed by defendant as a hostler in its stables in the city of St. Louis, was seriously injured by the kick of a mule on May 5, 1924. The mule, called "John," was brought to the stable of defendant about 10 days prior to the day of the accident. The first few days after the mule's arrival at the stable, he was kept in a box stall, about 14 feet square, which was inclosed all around with a door leading to the aisle. The mule was sick when he was brought to the stable and was placed in the box stall so that he could be taken care of better. It was necessary to administer medicine to the animal, and this was done by others assisted by plaintiff. From the very beginning it was noticed, according to plaintiff, that the mule acted differently from the average mule, in that he would wheel around and kick if one came close to him. There is evidence that this viciousness was observed in the mule during the entire time he was in the stall. Plaintiff said the mule had kicked at him some six or seven times previous to the time he was injured, and that the mule did this notwithstanding the fact that its physical condition seemed to be getting better. On this occasion plaintiff was passing through the aisle . of the stable when the mule backed out of a straight stall and kicked him. There was evidence to show that the mule was not an average mule, but was ill-tempered and would kick, though there was much evidence on the part of defendant directly to the contrary, and while defendant's witnesses said the mule was a docile animal, one of defendant's witnesses who said he was an expert on the subject of mules, conceded that a mule who would kick six or seven times in a period of ten days would be considered a vicious mule and would be unsafe. And though, as we have already said, there is much evidence on the part of defendant that the mule was not vicious but was a gentle specimen, only rebellious when forced to take medicine, there is proof of a substantial character on the part of plaintiff to sustain the inference that the mule was vicious and unruly.

The injury was most serious. Plaintiff sustained a hemorrhage of the spinal cord, paralysis of both...