Whalen v. Streshley

LANGDON, J.

This is an appeal by the defendant from a judgment against him for five thousand dollars, damages for personal injuries sustained by plaintiff while riding an “unbroken” mule upon a stock ranch owned by the defendant.

J. M. Streshley, the defendant, was engaged in the business of conducting a ranch, upon which he raised hay and cattle, in Willow Creek Valley, Lassen County, and employed a number of people in this work. In July, 1924, the plaintiff was employed by said defendant to

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work on the ranch as a hay hand, by the day. For some time prior to August 10, 1924, the hay hands and other employees of defendant had been riding calves, steers, cows, and unbroken horses for their own amusement. To aid them in this pastime two of the employees, after their working hours and on Sundays, had built a chute for putting the “rigging” on the stock intended to be ridden. This chute opened into a large corral, into which the animals, with their riders, were turned from the chute. Different members of the hay crew rode cattle and range horses frequently after supper and on Sundays. Plaintiff rode with the others and was present and watched the others ride. Among the boys the plaintiff was considered a good rider. He states that he rode well and that he took great pride in riding, and that on the occasion of his injury he “just wanted to ride and show off.” At the time of the accident he was a boy of sixteen years of age and had had experience in riding cattle and unbroken horses. The riding was outside the scope of his employment and was for his own entertainment and amusement. The defendant had been present on some of the occasions when his employees had had these “shows,” which were “handled” by Johnny Rhodes, one of the employees.

On the day of the accident, Sunday, August 10, 1924, cattle were brought into the corral and were ridden by plaintiff and other employees, and, later, plaintiff asked one of the younger boys to go into the field and get some horses for riding. This was done, and several of the employees rode the horses, the plaintiff riding a bay yearling from the chute. This animal failed to “buck,” as expected and desired by the riders, but made a run through the fence. Plaintiff grabbed the fence as the animal went through and escaped injury. The defendant was present and watched the performance. Other horses were used, and, later, a mule was put into the chute for riding. According to the undisputed testimony, one of the employees, called “Rusty,” was to ride this animal, but while he had gone to the barn for a drink plaintiff decided to ride the mule. He adjusted the “bull rigging” to satisfy himself and then mounted the mule freely and voluntarily and without any persuasion anyone. He knew the mule was put into the chute to make him “buck.” He expected him to buck. He had