Wilson v. Sioux Consolidated Mining Co.

After a statement of the case as above, Bartch, J., delivered the opinion of the court: The appellant contends that the respondent, at the time of the occurrence, was not its employé, and that it owed him no duty to acquaint him with the vicious character of the horse. It is true that the respondent was not one of its regular employés. The company, through its agent, however, entered into an arrangement, with one who was its employé, whereby the respondent wras to enter into its service for a certain time in the place of such employé. [396] Its agent was a party to the selection of this particular person so to enter its service. He was subject to its direction and control, and it had the right to discharge him at any time. When the accident happened he was performing labor in accordance with the orders and will of its agent. Under these circumstances, the relations of master and servant clearly existed, and the respondent must be regarded as its employé, and not as a servant of the employé whose plape he was to fill. The company must, therefore, be held to have owed him the same duty respecting care and prudence in providing safe means and appliances for the operation of its mine as it owed to any other employé, and as being responsible to him for the negligence of its agents in the same manner as it would be to any one of its servants. It was the duty of the foreman, its agent, to inform the respondent, upon entering its service, of the vicious propensities of the mare, and, the agent having failed to do so, the employer became responsible for any injury which resulted to him because of such neglect of duty. Where the master consents to the selection or employment of a servant, directs and controls such servant in the labor he is to perform, and has the right to discharge him, the master is liable for injuries received by the servant while in the performance of his duties through the negligent acts of the master’s agents. Shear. & E. Neg. § 160; Johnson v. Water Co., 71 Wis. 553; Town of Pawlet v. Rutland & W. R. Co., 28 Vt. 397; Railroad Co. v. Norwood, 62 Miss. 565; Brown v. Smith (Ga.), 12 S. E. 411; Manufacturing Co. v. Rahn, 132 U. S. 518. It is further contended that the respondent voluntarily assumed the risk of such employment, and therefore cannot recover. Whether or not the respondent was, before the accident, aware of the vicious and dangerous charac [397] ter of the horse, was a question of fact for the jury, which the jury must hare found against the appellant, and we think there is ample evidence in the record to sustain the finding. It is true the foreman testified that he informed the plaintiff that the mare was “high-lived,” but this does not necessarily imply that she was vicious and dangerous for a person accustomed to handling horses. Such an expression, as is well known, is frequently applied to horses which are just the opposite. When a horse is high-spirited, it does not necessarily follow that he has vicious propensities. That epithet applied to the horse in this case, without further explanation on the part of the foreman, was more likely to mislead the respondent, and lull him into a sense of security from vicious habits, than warn him of the danger which actually existed. Aside from this, however, the testimony shows that, previous to his employment, the respondent knew nothing of the vicious and dangerous propensities of the animal, and that nothing occurred previous to the accident which was of such an obviously dangerous character that a man of ordinary care and prudence would have refused to haul the cars with the animal before the time of the occurrence, which took place on the second day of the employment. Under such circumstances, the court would not be justified in holding that the respondent assumed the risk of the injury. He had a right to assume that his employer had discharged his duty, and furnished him a reasonably safe horse with which to perform his labor. Mangum v. Mining Co., 15 Utah 535; George H. Harmond Co. v. Johnson (Neb.), 56 N. W. 967. It is also insisted that the injury was caused by the respondent’s own want of proper carp in the performance of his duties. The question of contributory negligence was one of fact, which was properly submitted to the jury, [398] and the evidence in the record is not such as would warrant us in interfering with their finding in this regard. Saunders v. Southern Pac. Co., 13 Utah 275. Nor is the inference that the breaking of the coupling hook was the proximate cause of the injury justified by the evidence. The hook was a substantial one, and it is apparent from the testimony that its breaking was due to the vicious actions of the horse. Errors relating to the instructions of the court were also assigned, but, in the absence of proper exceptions, wo •cannot consider them. “An exception, to be of avail in an ■appellate court, should, in a case where any portion of the •charge is correct, be strictly confined to the objectionable matter, and the judge’s attention called thereto at tin* time of the delivery of the charge, so that an opportunity may be afforded him to make a correction.” Lowe v. Salt Lake City, 13 Utah 91. We find no reversible error in the record. The judgment is affirmed. Zane, C. J., and Miner, J., concur.