Flosbach v. Brown

TayloR, J. We think the learned circuit judge submitted the questions of fact fairly to the jury. The parties appear to have been satisfied with his instructions upon all the questions submitted, and took no exceptions to any part of them. The jury found the facts in favor of the plaintiff; and although, after a careful reading of the whole evidence as it appears in the written bill of exceptions, we are not prepared to say that the weight of evidence is in favor of the judgment, yet there is evidence to sustain it. The circuit judge carefully and fairly submitted the question whether the plaintiff was in the employment of the defendant, and by his direction did what he was doing at the time the injury was inflicted; and directed the jury to find for the defendant if they found that the plaintiff' was not train [429] ing tbe horse by his direction when he was injured. He also instructed the jury upon the question of contributory negligence, and directed the jury to find jor -the defendant if they found that the negligence or carelessness of the plaintiff contributed directly or proximately to the injury complained of; and carefully distinguished the degrees of care required of the plaintiff in the management of the horse, depending upon the fact of knowledge, or want of knowledge on his part of the vicious habit of the animal. The testimony was contradictory, and it was peculiarly the province of the jury to say which of the witnesses wex-e entitled to credit; and their decision, as a general rule, is conclusive upon this court. All the material issues having been fairly submitted to the jury under proper instructions, we find nothing in the record which takes the case out of such rule. There was no error in refusing the instruction asked by the defendant, and which the court refused to give. The instruction called upon the court to say to the jury, in substance, that there was no evidence that the plaintiff was acting under the direction of the defendant in doing what he did, and that therefore he was bound to obey the orders of the son of the defendant. The plaintiff had sworn that he was acting by direction of the defendant himself, and was not, therefore, under obligation to obey the directions of the son. The evidence of the warning given by the son, that the whipping of the horse had proceeded far enough, was proper upon the question of negligence on the part of the plaintiff; but under the testimony it was not conclusive against the right of the plaintiff to proceed farther in what he considered proper treatment of the horse.' To make the order of the son authoritative and binding upon the defendant, so as to make his subsequent acts unlawful, the evidence should have shown conclusively that the son had the right, as against the plaintiff, to control his acts in the management of the horse. Hpon the whole case, we think the judgment of the circuit court must be affirmed. That no unwarranted inference may be drawn from the [430] decision of this case, we deem it proper to say that, in our view of the record, it does not present the question whether a person employed to handle, care for and train a vicious horse, or other vicious animal, with knowledge of his vicious propensities, can in any case recover against his employer for an injury inflicted by such animal upon such person so employed, while taking care of or training such animal in the course of his employment. By the Court. —The judgment of the circuit court is affirmed. ÜYAN, C. J., took no part.