Haneman v. Western Meat Co.

COOPER, P. J.

This action was brought to recover damages for injuries received by plaintiff from being kicked by a horse owned by defendant while plaintiff was in its employ and driving the horse in connection with such employment. A verdict was rendered for plaintiff, on which judgment was

[699]

entered. This appeal is from the judgment and the order denying defendant’s motion for a new trial.

It is alleged that at the time of the injury plaintiff was employed, and for several months prior thereto had been employed, by the defendant to work in and about its meat market in the city of San Jose and vicinity, and to take and deliver meat to defendant’s customers; that for such purpose defendant supplied plaintiff with a horse, attached by means of a harness to a meat delivery wagon; that the horse was owned by defendant, and kept for the purpose of drawing the delivery wagon, but that at all times said horse “was vicious of temper, was of a ferocious and vicious disposition, and was of a kicking nature, possessed a habit of kicking and striking at whomsoever approached him or was within reaching distance of him.” That the vicious nature of the horse was well known to defendant, and was not known to plaintiff.

If it be conceded that the horse was vicious, yet the gist of the action against defendant was keeping the horse with knowledge by the defendant of his vicious propensity. It is necessary that the evidence be sufficient to sustain the allegations of the complaint as to the vicious character of the horse, the defendant’s knowledge thereof, and the plaintiff’s ignorance thereof; otherwise the judgment cannot stand. It was incumbent upon the plaintiff to prove these matters, as they are of the essence of his case. The common law makes the owner of vicious domestic animals with notice of their vicious propensities responsible, for the reason that under such circumstances it is the duty of the owner to anticipate that such animals will commit such vicious acts as opportunity offers, and it is the duty of the owner to guard against such acts. It' is not claimed that the horse was vicious at the time defendant purchased it, or that the proof shows that its general character was that of being vicious and ferocious. Certain specific acts are relied upon to show that the animal was vicious, which we will notice in detail.