Smith v. Zana

PRESTON, P. J.

The plaintiff, Lutitia Smith, was kicked by a horse belonging to the defendants. She and her husband, William C. Smith, brought this action for damages. The cause was tried by the court without a jury, resulting in a judgment in favor of the plaintiffs for both special a.nd general damages in the total sum of $1929.20. Prom this judgment the defendants prosecute this appeal.

Appellants, who are husband and wife, own and operate a merchandise store on the east side of Main Street in the town of Campo Seco, in Calaveras County. In front of the store building is a porch about eight feet wide and three feet high, which was used by the people as a sidewalk in front of the store. About 100 feet south of the store, and on the same side of the street, is the postoffice. People living north of the store and on the east side of the street, in going to and from the postoffice, generally travel in the

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main street in front of the porch of store, for the reason that, at the north end of the porch, there were four steps to climb before reaching the top of the porch, and on the south side, the steps w'ere lower than on the north side, and it was much easier to traverse the porch going north than going south.

. Appellants, in making deliveries of merchandise, used a wagon drawn by two horses, one a black mare named “Babe”. When goods were to be delivered, the wagon would be driven parallel with the porch and close enough to permit the defendant, A. Zana, the driver, to step from the wagon to the porch or

vice versa.

The horses were only tied by setting thé brake and wrapping the lines around the brake handle. ■

On the day of the accident, the wagon and team were parked in this position, with the team headed north and. standing about three or four feet from the porch. While the team and wagon were in this position, Mrs. Smith went to the postoffiee and upon returning, approached the team from the rear and walked between the porch and the team. In passing, the mare “Babe” kicked her and inflicted the injuries complained of.

The defendants contend that Mrs. Smith was guilty of contributory negligence as a matter of law. This contention is based principally upon the testimony given by Mrs. Smith to the effect that she had observed the mare “Babe” which kicked her, shortly before the accident and she was “skittish” and that Mr. Zana could not drive her close.enough to the porch for him to step from the wagon to the porch. That the mare “kind of shied off from the porch”.