199 P. 933 | Wyo. | 1921
This is an action brought - by appellee, plaintiff below, against appellant, defendant below, in Natrona County, on account of severe and permanent injuries inflicted upon him by a vicious stallion of the appellant while plaintiff was in the employ of the defendant. The case was tried to a jury. At the conclusion of plaintiff’s testimony defendant moved for a directed verdict. This motion was overruled. A like motion was made by defendant at the conclusion of all the evidence. This, too, was overruled. The jury returned a verdict for plaintiff in the sum of $3000, and judgment was entered thereon. The case is here on direct appeal, and the only question argued is, that, the verdict is not sustained by the evidence, for the reason that it appears that the appellee had just as much knowledge of the vicious character of the stallion as appellant, and for that reason assumed, as a matter of law, the risk of his employment, and that the injury was the result of his own fault. For the purpose of this case, therefore, we must take the testimony, tending to sustain plaintiff’s ease, as true.
Appellant was shown to have been, at the time of the accident in question, about 40 years of age, with 19 years’ experience in ranching. He bought the stallion in question in
Appellee testified that at the time of the accident he was about 21 years of age, limited in experience with horses, and with none in connection with stallions; that he started to work for appellant at ordinary farm work in April, 1917, and was directed to care for the stallion at various times, commencing about June 1st, prior to the accident; that he noticed the “nipping” above mentioned, as well as the conduct of the animal on June 10th, including the attack on him while he was on a horse; that he was not warned of the viciousness of the stallion; that on the contrary, he was told that the animal was gentle; that appellant explained the attack on June 10th by stating that the stallion would fight another horse, but if approached on foot, would be safe; that he relied on the statements and assurances given by appellant, and that he, himself, was not sufficiently experienced to know or appreciate the meaning of the actions of
In discussing the question of assumption of risk, it is advisable in view of the wilderness of cases on the subject, that we first draw some distinctions, which, for practical reasons ought often to be drawn. As far as possible, we shall cite only authorities treating of vicious animals, but inasmuch as we have found no case of that character dealing extensively with distinctions as to the various risks, we shall to some extent cite authorities dealing with the general subject involving the relation of master and servant. While the various kinds of risks often shade one into the other, we may state generally that a servant assumes (1) such dangers as are ordinarily and normally incident to his occupation, and a workman of mature years is presumed to know them, whether he does or not; (2) such extraordinary or abnormal risks which he (a) knows and appreciates and faces without complaint, or which (b) are obvious or apparent. (Dutrey Admx. v. Ry. Co., 265 Pa. St. 215; Streeter v. Scraper Co., 254 Ill. 244, 98 N. E. 541; Ry Co. v. Simmons, 24 Ga. App. 96, 100 S. E. 5; Bailey, Personal Injuries (2nd Ed.) §§ 355, 356), and numerous other cases. The master is prima facie bound to give warning of all abnormal or extraordinary risks (Labatt, M. & Serv. 2nd Ed., § 1146), but not ordinarily of obvious risks (Bailey, supra, § 299 a; Labatt, supra, § 1144; Carney Coal Co. v. Benedict, 22 Wyo. 362, 369); nor generally, of ordinary risks, unless secret dangers exist of which he has knowledge and the servant has not. (Labatt, supra, § 1145.)
What kind of a risk was the one in the case at bar? Ordinary risks, constituting the first class, are those existing after the master has done everything that he is bound to do for the purpose of securing the safety of his servants. The assumption of this class of risks is predicated, as it were, on the absence of negligence of the master, and to say that such
Having determined then that the risk in the ease at bar was an extraordinary risk, could the court say, under the evidence of this case, that the plaintiff was barred as a matter of law? Let us first state the general principles appli
‘ ‘ It was the duty of defendant, also, to inform the plaintiff fully of the vicious propensities of the horse, and he is legally liable for the damages which resulted to the plaintiff in consequence of his failure to impart to him such informa
The question of obvious risks was fully discussed in Carney Coal Co. v. Benedict, supra, where this court, speaking through Chief Justice Potter, held that ‘ ‘ a court is not authorized to say as a matter of law that the danger was obvious unless.it is shown by the evidence without conflict that an ordinarily prudent man or one with the experience of the injured servant ought to have noticed it. ’ ’ That holding is fully sustained by the authorities. See an exhaustive opinion on the subject in Rase v. Ry. Co., 107 Minn. 260, 120 N. W. 360, 21 L. R. A. (N. S.) 138. Obvious risks are distinct from known and appreciated risks, though both belong to the class called extraordinary; the latter is based on actual, the former on imputed, knowledge. There is no evidence in this case from which we could say, as a matter of law, that the danger was apparent. Courts will not declare that mules are judicially known as vicious, neither can we do so as to stallions. Some, no doubt, are more tractable than others, and we cannot know judicially that the partial information, received by plaintiff, according to his testimony, when he was on a horse, should have convinced the plaintiff that he would be bitten and lacerated when approaching the stallion on foot. The jury, taken from all walks of life, were probably better fitted to pass judgment upon that than the court, and the question was properly left
What we have said also disposes of the question of contributory negligence. If plaintiff did not know and appreciate the danger, he could not be guilty of negligence in approaching the stallion at the time of his injuries, unless he was negligent in the act of approaching and handling the stallion at that time, of which there is no evidence. The question of contributory negligence, therefore, was rightly left to the jury. (Escher v. Mineral R. & M. Co., supra. Anderson v. Anderson, supra; Lampe v. St. Louis Brewing Ass’n. (Mo.) 221 S. W. 447.)
The judgment herein accordingly should be affirmed, and it is so ordered.
Affirmed.