Oxford v. Dudley

*616 STURGIS, R. J. The alleged facts upon which this suit is Based are that the defendant was the owner of a certain stallion which he used in serving mares for hire; that plaintiff was the owner of a mare which he took to defendant to be served by such stallion; that defendant was guilty of negligence in his manner of handling such stallion in the process of Breeding such mare resulting in inflicting injuríete to such mare from which she died. The trial resulted in a verdict and judgment for defendant and plaintiff appeals, complaining of the admission of improper evidence and the giving of erroneous! instructions. The owner of a male animal is liable for injury done to a female in and by the act of service where such injury is attributable to any negligence or lack of skill of such owner and this includes injury done to the female by reason of a false or wrong entry — that being the nature of the injury complained of here. [3 C. J. 49, and cases there cited; Jones v. Darden (Ala.), 7 So. 923.] While it wa'si not admitted and therefore plaintiff was required to prove that his mare was injured in the maimer stated, there was little or no controversy on this point.'. There was really only one simple-issue involved, to-wit, defendant’s negligence or want of reasonable care or skill in handling his stallion. [ Cavender v. Fair (Kan.), 19 Pac. 638.] There is no doubt that plaintiff‘made a prima-facie case by proving that defendant permitted the horse to act at will while the mare was being held and took no precaution in aiding or guiding the house in the act of serving the mare. It was .held by a very learned judge in Peer v. Ryan (Mich.), 19 N. W. 961, “that if the, rectum was entered, the inference must be, in the absence of any evidence to show other cause, that the groom was wanting in due care.” Certainly where the groom permitted this to occur twice in succession, as was the case here, the jury would be justified finding- negligence. [Scott v. Hogan (Iowa), 34 N. W. 444.] *617 Prom the nature of the case it seems very probable that the injury was inflicted by the second false entry. Under the simple issue of defendant’s negligence .in handling the horse on this particular occasion, the defendant was ’allowed to proveí tha|t plaintiff had previously worked for defendant, had assisted.him in handling this same horse in breeding mares and that plaintiff had himself handled the horse in this same manner as defendant did on this occasion and took no more precautions to prevent injury to the mare served than did defendant. Then the court gave these instructions: Instruction No. 2 “You are further instructed that if you find and believe from the evidence in this case, that if plaintiff had, prior to the time in question, worked for defendant and handled said horse in serving mares with said horse in the same manner that defendant handled! said horse ait the time in question, ,and that at the timé of the alleged injury! the plaintiff was present and saw defendant handle the horse and mare in question and assisted him in having the horse serve the mare, and made no objection thereto but acquiesced in the way and manner said mare was being served by siaid horse, and said mare was served in the usual and customary way and not negligent, then plaintiff cannot recover and your verdict will be for the defendant.” Instruction No. 3 “The court instructs the jury that if you find and believe from the evidence that the plaintiff at and before the injury of the animal in question, wa,s well acquainted ..with the way and manner defendant served mares with his house, and from said knowledge he had the right to and did expect that his mare would be served at the time in question by said horse in the way; and manner that she was served at said time, then plaintiff assumed the risk incident to the manner and way said mare was so served at said time, and your verdict will be for the defendant.” These instructions should not have been given. They raise improper issues for the jury. It is no *618 defense to defendant’s negligence, if any on this occasion, that plaintiff on prior occasions was guilty of the same negligence. Besides, when plaintiff was guilty of the same negligence acts, if they were negligent, he was in defendant’s employ and subject to his direction and control and for his negligent acts defendant was liable. Nor; is there any «question of contributory negligence or estoppel on plaintiff ’s part, as the second instruction implies, because of his being present and holding his own mare and observing without protest the way and manner his mare was being served b;y: said horse. This probably could be said of every man who takes his mare to be served by a horse. It is not his duty though present to direct the owner of a horse what to do or to protest against the owner’s acts — unless indeed plaintiff is guilty of contributory negligence by allowing such an obviously dangerous act that no prudent man would stand mute — a proposition not involved or sumbitted by this instruction. [29 Cyc. 516.] The second instruction mentioned is erroneous for predicating assumption of risk of defendant’s negligence. If the doctrine of assumption of risks is applicable at all to this kind of case, it has been so often held in this state that no one assumes the risk of another’s negligence that we will not stop to cite the cases. If the jury should find that the defendant was negligent then plaintiff did not assume the risk of his negligent acts. The law of assumed risks in this State has narrow limits and applies generally if not always to those dangers attendant on the act or method when done in a manner free from negligence. [Whelen v. Zinc Co., 188 Mo. App. 592, 176 S. W. 704; Gambino v. Mfg. Coal Co., 180 App. 643, 164 S. W. 264.] The evidence, adduced on cross-examination, that plaintiff had managed this horse in the same manner that defendant did on this occasion may be admissible as tending to show what a reasonably prudent man would do under the same circumstances and thereby *619 tend to negative defendant’s negligence. That, however, is quite, different from justifying the instructions mentioned. There is some merit also in plaintiff’s contention that expert witnesses were permitted on direct examination to state their individual habits and methods of handling horses in breeding mares. The real question at issue is whether defendant did what a reasonably prudent person would do under the same or similar circumstances and the general usages and customs may be shown in support of this. What the witness or some other individual did on a particular occasion or even generally is objectionable on direct examination. [Medsker v. Pogue, 27 N. E. 432.] It follows that the judgment will be reversed and the cause remanded. Farrington and Bradley, JJ., concur.