Paine v. Ward

KERRIGAN, J.

This is an action to recover damages for-personal injuries alleged to have been caused by the negli

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gence of the defendants. The case was tried without a jury and a judgment was entered in favor of the plaintiffs. The appeal is from an order denying defendants’ motion for a new trial.

At the time of the accident the plaintiffs were employed on the Cullen ranch, near the town of Gilroy as teamster and cook respectively, and the defendants, who were in the wood business, were cutting and hauling wood from the same ranch. At that time an employee of the defendants, having in charge the defendants’ team attached to a wagon, had passed from the public road into the Cullen property, and after doing so had left the team and wagon standing unattended while he stepped back to close a gate through which he had just passed. At this moment he noticed the plaintiffs approaching driving a horse and buggy, and he held the gate open until they had passed into the Cullen ranch. After passing through the gate the plaintiffs drove around the team, and when they got into the road and about forty feet ahead of the team,' the latter ran away and collided with or jumped into the rear of their buggy, resulting in the injuries complained of.

Defendants contend that the findings are not supported by the evidence.

The court found that defendants’ “said servant negligently and carelessly left said team of horses, hitched to said wagon, standing about twenty feet from the gate or.entrance to the Cullen ranch . . . without fastening the reins or setting the brake upon said wagon, said horses being unattended by any person or persons and untied.” That while the team was left in that unsafe condition said employee “carelessly and negligently” did “slam shut violently and with great force the gate to said entrance, thereby creating a great and sudden noise,” which noise “combined with other causes . . . caused said team of horses to take fright” and run away.

Defendants’ contention that the evidence is insufficient to support this finding is untenable. One witness testified that this was a restless and nervous team and that it had acted in a fractious manner before. ■ It was undisputed that the employee in charge of the team on the day of the accident had been driving it for a period of three months. One of the plaintiffs, W. A. Paine, said in his testimony that it is the custom of teamsters to set brakes, back the team, and