Osborne v. Van Dyke

113 Iowa 557 | Iowa | 1901

Waterman, J.-

-Plaintiff was in the employ of defendant, and, among other duties, had the care of several horses. On the occasion in question, as plaintiff was leading into a shed with a halter one of the horses; defendant stopped him, and undertook to apply a wash to a galled plaee on the animal’s neck. The horse was nervous and restless, and would not stand, so a twitch was put on him, and plaintiff held this with the halter while the wash was applied. • After-the twitch was removed, defendant noticed another bruised! spot on tbe animal’s shoulder, and he attempted, without replacing the twitch, to wash this. The horse jumped aside, and struck defendant, throwing upon his clothes the medicine, which he had in a tin can in his hand. (1) This angered1 defendant, who seized the twitch, the handle of which was a heavy stick with a nail in the end, and began violently and brutally beating the horse, which struggled to escape. Plaintiff tried, without avail, to induce defendant to desist. Finally a blow aimed missed the horse because of a slip-by defendant, and plaintiff was struck in the face, breaking the bones of his nose and otherwise injuring him. There-was no evidence tending to show that the .blow so struck was intentional. The court submitted the case to the jury on the-theory of defendant’s negligence, instructing them that defendant would not be liable if in beating the horse he exercised reasonable care to avoid striking plaintiff, and the blow which inflicted the injury was caused by an accidental slip, for which defendant was not to blame; and the jury was further told, in effect, this would be so even if defendant, in. beating the horse, was guilty of an unlawful act.

1 We think the instructions omit one essential fact,, viz.: Was it negligence for defendant to strike the horse-in the manner he did and under the circumstances existing-at the time ? If it was, he is liable for the natural and probable consequences of his act, even though-the precise result which followed may not have been anticipated. Doyle v. Railway Co., 77 Iowa, 607-610. An “accident” may be defined as an-event happening unexpectedly and without fault. Leame v. Bray, 3 East, 593. Now, it cannot be said that defendant-was without fault for the slip of the foot, which he urges in-excuse, if it grew out of or resulted' from his negligent act.. There was evidence tending to show that defendant, in brutally beating the horse while plaintiff was holding it, did so-for no other purpose than to vent his rage by inflicting physical pain on the object of his fury. The slip of the foot that caused the blow to go amiss cannot, if this state of facts is true, be said to have been without p-Mnti-ff-’s fault. lie could not reasonably have supposed the horse would stand quietly and receive the punishment administered. If, then, he was negligent in striking the animal as he did, he cannot escape because some intervening cause, growing out of his wrong, aided in producing the results of which complaint is made. Gould v. Schermer, 101 Iowa, 583.

The case at bar is stronger in its facts tiran the one cited, for here there is evidence tending to show the claimed intervening cause was brought about by defendant’s wrongful act. But if it can be said the sixth instruction given by the court submitted,to the jury the question of whether defendant was negligent as a matter of fact in striking his horse, though we must say we are not inclined to give it that construction, there is still another point to be considered.

II. In the ninth paragraph of the court’s charge, the jury were told: “It is not material or necessary for you to find whether or not the act of defendant in whipping or-striking his horse was unlawful.''5’' It was claimed on behalf of appellant that, if defendant was engaged in the doing of an unlawful act which resulted in injury to plaintiff, such conduct would be negligence as matter of law. There was evidence going to show that defendant was guilty of a violation of section 4969 of the Code, which imposes a penalty for cruelty to animals. “The general rule of law is that whoever does an illegal or wrongful act is answerable for all the consequences that ensue in the ordinary and natural course of events.” 1 Addison, Torts, 7. In Messenger v. Pate, 42 Iowa, 443, defendant was sued for an injury caused by the unboxed tumbling rod of a threshing machine. The statute made it a misdemeanor to operate a machine with such rods unboxed. This court announced the following rule of law in that case: “We concur.in the general proposition that, whenever an act is enjoined or prohibited by law, and the violation of the statute is made a misdemeanor, any injury to the person of another, caused by such violation, is the subject of an action; and it is sufficient to allege the violation of the law as the basis of the right to recover, and as constituting the negligence complained of.” So, likewise, it is held that, where one is unlawfully carrying a loaded revolver, he is liable for injuries done another by its discharge, although the person injured assented to the revolver being carried. Evans v. Waite, 83 Wis., 286, (53 N. W. Rep., 445). See, also, Weick v. Lander, 75 Ill., 93; Salisbury v. Herchenroder, 106 Mass., 459; Conn v. May, 36 Iowa, 244. If The defendant was doing an unlawful act in beating the horse, he is liable for damages caused thereby, and the subsequent accidental slip would not shield him, for the reasons already stated. The well-known “Squib Case” is a leading authority illustrative of the principle that one who wrongfully sets in motion a force by'which another is injured is liable, although an intervening agency, not in itself wrongful, aided in producing the result. Scott v. Shepherd, 2 W. Bl., 892, 1 Smith, Lead. Cas. 797. We do not regard the case of Tingle v. Railroad Co., 60 Iowa, 333, cited by .appellee, as in conflict with the views here expressed. In that case the unlawful act (operating a train on Sunday) ts$a a condition, but not a cause of the injury done. For the reasons given, the case must go back for a new trial. — Reversed.