Dolieslager v. Excelsior Farms

GRIFFIN, P. J.

Plaintiff-respondent brought this action against defendant-appellant for injuries resulting to him from being butted and gored by a show bull owned by defendant corporation, resulting in multiple fractures of the right forearm, intestinal goring and fractures of the pelvis.

Plaintiff’s original complaint sought damages based on a cause of action on the theory of absolute liability on the ground that the bull had dangerous propensities of which defendant had knowledge. After both parties rested their case, the complaint was amended to show a second cause of action based on negligence of the defendant. A jury verdict was rendered in favor of plaintiff in the sum of $44,000. Judgment was entered on the verdict. Defendant thereafter moved for judgment in favor of defendant notwithstanding the verdict or, in the alternative, to grant a new trial. Both motions were denied.

Defendant’s contentions on appeal are that: (1) there is no substantial evidence in favor of plaintiff to support the verdict and judgment; and (2) the trial court committed reversible error in refusing to give a proffered jury instruction.

Defendant corporation is a dairy farm in Riverside County, on which is maintained a number of bulls, including show bulls. Plaintiff has operated a hoof and horn trimmer business for about 17 years. He had done work for defendant for several years. He was called by an agent of defendant to come over and cut a pus pocket out of the hoof of bull No. 90, a show bull, which was going to be shown at a fair in about two weeks. When plaintiff arrived at defendant’s farm, the bull was tied up near plaintiff’s clipping rack by defendant. Later, the bull was placed in the rack, a cage-like affair attached to the bed of plaintiff’s truck. When the bull was secured therein, the cage was tilted so the bull would lie on its side and plaintiff performed the job of cutting out the pus pocket. Thereafter, an employee of defendant asked plaintiff to put the bull back into its pen and the employee left.

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Plaintiff then led the bull by a 2-foot rope back to its pen, walking along beside the bull. As he entered the pen, the bull wheeled back and butted and gored him, as indicated. He had attended this bull, then about 9 years old, on 10 or 15 occasions and since it was a yearling. He had never had any trouble with it before and he figured it was a show bull and gentle. He testified that on all other occasions one of the employees led the bull back to the show barn or pen. There was testimony that there is a “lot of difference” between show bulls and “regular bulls,” particularly in the way they are handled; that show bulls are broken to be led and this is not true of other bulls; and that the customary practice is to lead show bulls but to drive other bulls.