Negligence, Employer's liability. Animal. In an action for injuries from being kicked by a horse which the plaintiff was driving for the defendant there is no sufficient evidence that the defendant knew or ought to have known that the horse had a vicious habit of kicking, if it appears that the defendant had been in possession of the horse only a month and a half and that during that time the horse had only kicked once and then under such circumstances that the viciousness of the kick was only a conjecture.
From the facts that a horse of the defendant driven by the plaintiff in a laundry wagon switched his tail over the reins knocking them out of the plaintiff's hands and ran away kicking continuously until he hit the plaintiff on the leg it reasonably cannot be inferred that the horse before the accident had a vicious habit of kicking or that the defendant should be charged with a knowledge of such a habit.
BARKER, J.
We think there was no sufficient evidence that up to the time of the accident the horse had a vicious habit of kicking or that the defendants knew or ought to have known that it had such a habit.
There is nothing from which to infer that they knew more about the habits of horses than the ordinary man in whose business the use of horses is a mere incident. The animal had been in their possession but a month and a half, and had so far as appears never given but a single kick, and that in its stable and under circumstances from which to say that the kick was vicious is merely conjecture. These facts distinguish the case from that of Lynch v. Richardson, 163 Mass. 160. Assuming that the fact of the single kick in the stable was known to the defendants it was not enough to require the submission of the case to the jury. Nor can it reasonably be inferred from the conduct of the horse at the time of the accident and on subsequent occasions that it had the vicious habit before the accident nor that the defendants should be charged with knowledge at that time.
This view of the evidence makes it immaterial whether the plaintiff was hurt in the course of his employment or while using the horse for his own convenience merely.
Exceptions overruled.