Gordon ex rel. Gordon v. Hardgrove

LUJAN, Chief Justice. Appellee, plaintiff below, while employed by appellant in grooming and preparing horses for public auction at a sales ring managed by appellant, sustained injuries when a horse he was riding ran backward with him, reared and fell, pinning appellee against a corral fence. He seeks damages for injuries resulting therefrom. At the time of the accident appellee was pf the age of 19 years. His duties consisted of cleaning horses, trimming their manes, and otherwise preparing them for public auction. It was also his duty to ride horses to see that they were bridle-wise, etc. He received one dollar for each animal cleaned and slightly more for riding them. The cause was tried to the court on the issues of negligence and assumption of risk. The court found for appellee; judgment was entered accordingly and appellant, claiming error, prosecutes this appeal. The trial court based its decision solely on the immaturity of appellee and his lack of experience. Neither appellant’s negligence nor the extent of .the injuries suffered, or the amount of the award is challenged. It is a well settled principle that a servant while in the performance Of specific services for the master, takes upon himself the ordinary risks incident to such employment; and the rule applies equally to a minor, in so far as those risks are, or ought to have been known to and appreciated by him. Furlow v. United Oil Mills, 104 Ark. 489, 149 S.W. 69, 45 L.R.A.,N.S., 372; Herbert v. Greenbaum, 248 Mass. 398, 143 N.E. 317. The evidence is clear that appellee was crafty in the handling of horses, having been around them since he was of the age of 12 years. He testified generally as to the habits of horses, the possibility they would pitch, run backward, rear up and fall with their riders. The record demonstrates an uncanny knowledge of horses for a youth his age. But appellee’s employment required of him nothing more than to clean horses to be put through the sales ring and to ride gentle horses. We quote from his testimony: “Q. You never broke or rode horses or anything for Mr. Hardgrove? A. No, sir, all the horses I rode for Jimmie (appellant) were broke horses, supposed to be broke horses, and I tried to get them reining better than what they were and stuff like that, there was usually some little flaw in each horse that I was supposed to try to get out in time for the sale, maybe he wouldn’t turn one way just like he did the other or something.” In Herbert v. Greenbaum, supra [248 Mass. 398, 143 N.E. 318], the court said: “There is no evidence that the plaintiff had ever seen this horse or had any knowledge of its vicious disposition at the time he entered the employment of the defendant; his contract did not include the care or cleaning of horses of vicious or dangerous habits, but was limited to those which were ordinarily safe and free from such habits. Accordingly there was no contractual assumption of the risk of injury from dangerous and unruly horses.” Even with the knowledge possessed by appellee, we cannot say he assumed the risk as a matter of law. There is no evidence that he had seen the horse previously or had knowledge of its vicious habits. Whether he appreciated the risk involved in riding the horse, was a question of fact to be determined in the light of his maturity and experience. We think the findings of the court are supported by substantial evidence. However, it should be stated that this court is not holding as a matter of law that a person of the age of 19 years is immature. Quite the contrary, the trial court resolved this question, having heard the testimony and having seen the witness. The judgment will be affirmed. It is so ordered. COMPTON, J., and DAVID W. CARMODY, D. J., concur. McGHEE and SHILLINGLAW, JJ., dissenting.