Wessel v. Cazaretto

BURROUGHS, J.,

pro tem.

This is an action for personal injuries. The cause was tried by the court without a

[391]

jury. Judgment was entered in favor of the defendant and the plaintiff appeals therefrom. At the time of the accident out of which this cause arose, the plaintiff was a boy of seven years of age. The action is brought by his father, who was appointed his guardian

ad litem.

Complaint is made that the findings of the court are not sustained by the evidence. It is alleged in the second amended complaint that on January 2, 1927, the defendant was the owner of a vicious horse which he knew to be vicious and ferocious and which he carelessly and negligently permitted to run at large in the city of San Carlos. That on said day while so at large said horse kicked the plaintiff in the face, inflicting serious injuries. These allegations are denied by the answer. The court found that the defendant was not the-owner of a vicious horse, or that the horse mentioned in the said complaint was or is a vicious animal; that it is not true that defendant negligently or otherwise permitted said horse to go at large without being securely guarded or otherwise; that it is not true that on January 2, 1927, said horse was at large and not securely guarded and confined; that it is not true that said horse on the last-mentioned day or at any time, kicked or wounded or inflicted any injuries upon plaintiff as set forth in the complaint or otherwise, or that plaintiff was damaged in any sum whatever through any fault or act of the defendant. Counsel for plaintiff sets forth in his brief such evidence as he believes sustains the allegations of the -complaint. However, if there is any substantial evidence to sustain the findings of the trial court this court may not interfere.

(Estate of Wall,

183 Cal. 431 [191 Pac. 687]; 20 Cal. Jur., p. 27, sec. 13.)

There is no evidence that the horse was vicious. The evidence of defendant and other witnesses was to the effect that the horse was about twenty-five years old, “broken down” and one with whom children had frequently played, “lifted his feet” and “pulled his tail”. The court also found that it was not true that on January 2, 1927, said horse was at large and not securely confined; that it was not true that said horse on the day last mentioned or at any other time, kicked or wounded the plaintiff. There was no evidence of any eye-witness to the accident; even the child did not undertake to identify the horse. He kept repeating that it was “the horse”. The defendant testified that he