186 Mo. App. 593 | Mo. Ct. App. | 1915
— This is a suit for damages accrued to plaintiff on account of personal injuries received through being kicked by defendant’s horse, and it proceeds on the grounds of negligence. Plaintiff recovered and defendant prosecutes the appeal.
It appears that plaintiff was in the employ of defendant at its stables, and his duties pertained to cleaning harness and feeding a number of defendant’s horses. Among the horses assigned to plaintiff to be fed was one known as No. 57. The evidence tends to prove that this horse was vicious, in that it would kick and bite and jump on occasions. There is an abundance of evidence tending to prove that McGowan, defendant’s superintendent, was aware of the vicious disposition of the horse and that he had been notified of it several different times. It appears, too, that plaintiff was apprised of the same facts, for he states that he was present when the horse kicked at a negro employee of defendant some months before, and he also heard the negro complain to McGowan, the superintendent, concerning the fact. Plaintiff also says that he had heard one Watrow complain to the superintendent that the horse had kicked at him on another occasion. He also knew the horse kicked one time near the Union Station. Shortly before plaintiff was injured, he had a talk with McGowan, the superintendent, after Watrow was lacked and suggested that McGowan have the horse placed in a box stall where he could feed him without danger of being kicked, and McGowan said, “You go on and take care of that horse in the stall; all you have to do is to be careful, you won’t be hurt.” A few. weeks thereafter, while plaintiff was passing into the stall carrying a measure of oats with which to feed the animal, the horse kicked him, inflicting the injuries complained of, and, moreover, it trampled upon him and became greatly excited for the time. Plaintiff said he did nothing tending to disturb the horse, but
It is argued the court should have directed a verdict for defendant, for it is said a servant may not recover from the master in such circumstances, because it appears that he, as well as the master, knew of the vicious propensities of the horse and must be regarded as having assumed the risk of injuries accruing therefrom. Whatever may be the law on this subject in other jurisdictions, it seems to be settled in this State that the servant assumes only such risks as are ordinarily incident to the employment in which he embarks, and such are said to be risks which arise apart and distinct from those entailed by the master’s negligence. In other words, as said in Curtis v. McNair, 173 Mo. 270, 73 S. W. 167, “He only assumes the risk of that which is liable to happen on account of the nature of the business when the master has used reasonable care to avoid such result.” [See, also, George v. St. Louis & S. F. R. Co., 225 Mo. 364, 407, 125 S. W. 196; Dakan v. Chase & Sons Merc. Co., 197 Mo. 238, 266, 267, 94 S. W. 944.] Here, although the suit proceeds on the grounds of negligence between master and servant, the averment is not that defendant furnished plaintiff a defective appliance, but rather that it breached its duty in failing to furnish him a reasonably safe place to perform his work. Plaintiff was not a driver — that is, assigned the task of using the horse in defendant’s business — but, as before stated, he was a harness cleaner at the stables whose time was partly occupied in feeding the horses. It appears the horses were stationed in stalls and plaintiff entered within the stall of each beside the horse in the process of feeding. Knowing the disposition of the horse in question, he requested the superintendent to place it in a box stall so that the task of feeding might be performed without encountering the danger of a kick. The petition charges that defendant
It appears defendant might have secured plaintiff’s safety in feeding the horse by providing a box stall, and it omitted to do so, although requested. Obviously it may be found that such amounts to a breach of the obligation resting on defendant to exercise ordinary care toward furnishing plaintiff a reasonably safe place in which to work. It is true the superintendent, McGowan, did not promise that a box stall would be provided, but he said: “You go on and take care of that horse in the stall; all you have to do is to be careful, you won’t be hurt.” These words, of course, convey an assurance of safety to plaintiff, in event he was careful, and the evidence is that he approached the horse on the occasion in question with due care and consideration. Although it be true that an experienced servant may not rely on an assurance of safety from an inexperienced master, where the servant knew more of the attendant dangers than the master did, as is said in Knorpp v. Wagner, 195 Mo. 637, 666, 667, 93 S. W. 961, we believe the principle is without influence in the instant case, for here it appears that the superintendent possessed full and complete knowledge pertaining to the horse and the dangers which inhered in the situation as well as did plaintiff. This being true, it is certain that plaintiff may hot be treated as an experienced servant possess
Defendant cites and urges with great force the ruling of the Supreme Court in Clark v. Missouri, K. & T. R. Co., 179 Mo. 66, 77 S. W. 882, as controlling here, but we do not regard the authority in point. It is true that much is said in the opinion in that case, but on the whole the proposition established by the decision amounts to no more than that a servant who is fully advised of the impending danger from the onslaught of a vicious steer may not recover on the breach of the master’s obligation to warn against such danger,, for, it is said, he knew as much or more than the master could have conveyed through the warning.
The judgment should be affirmed. It is so ordered.
