The allegations of the complaint are as follows: "That heretofore, to wit, on or about the 3d day of July, A. D. 1901, plaintiff was employed by said defendant in cutting defendant's hay on the ranch of defendant in said [Humboldt] county with a machine commonly known as a mower or mowing machine. That while so employed as aforesaid on said 3d day of July said defendant requested this plaintiff to work a certain team of defendant's horses on said mower. That one of said horses was unknown to this plaintiff, who was not acquainted with the habits nor disposition of said horse, never having driven or worked, nor seen said horse driven or worked, prior to that time. That said defendant then and *Page 407 there informed this plaintiff that said horse was a broken and gentle animal. That said defendant then knew that said horse was neither broken nor gentle, but that he was a wild, dangerous, and uncontrollable animal commonly known as a `bronco.' That plaintiff, while so employed as aforesaid, and at defendant's request, commenced working said team, but, without any fault on his part, was unable to work, manage or control same, and said team ran away with said machine and this plaintiff, without any fault on the part of plaintiff, throwing plaintiff therefrom violently and in such manner that plaintiff was greatly, seriously, and permanently injured," etc. This is an action of damages against the defendant for the injuries that the plaintiff received as he alleges in the above complaint.
If the complaint be considered in the nature of a willful and malicious misrepresentation and fraud under the allegation "that said defendant then and there informed this plaintiff that said horse was a broken and gentle animal; that said defendant then knew that said horse was neither broken nor gentle, but he was a wild, dangerous, and uncontrollable animal commonly known as a bronco" — then I think the evidence does not support the allegation; for there is nothing therein to show that the defendant knew that the horse was "a wild, dangerous, and uncontrollable animal commonly known as a bronco." Could the complaint be considered as an action of damages for negligence on the part of the defendant under the relations of master and servant between defendant and plaintiff? It would seem not. (The Indiana B. W. R. Co. v. Burdge,94 Ind. 46; Shearman Redfield on Negligence, sec. 20, and note; and Labatt's Master and Servant, sec. 59, and note 4.)
Does the evidence given on the trial support the verdict of the jury in favor of plaintiff? While there is some conflict in the evidence on other points, to me it seems, though otherwise to my Brethren, that the uncontradicted evidence is as follows: Plaintiff hired to defendant to work for defendant in running defendant's mower in mowing hay on defendant's ranch. Plaintiff was an experienced teamster, and had before broken horses for a man by the name of Snapp, and plaintiff himself owned and worked bad horses. Defendant *Page 408 told plaintiff that he wished him to work to a mower a horse of defendant's that had not been broken to work to the mower, but had been broken to work to a wagon, and that the horse was broken and gentle in working to a wagon; that defendant wanted plaintiff to work said horse with an old and gentle horse, so as to break the unbroken horse to work to a mower. An old horse and the young and unbroken horse were hitched to a mower, and plaintiff mounted the mower and started to drive the team. The young horse stopped. The other horse then stopped also. A tug came loose and was fixed, the team started again, and the young horse ran away, taking with him the other horse and mower. The plaintiff was violently thrown to the ground and greatly injured. On the foregoing the testimony is, as it seems to me, uncontradicted, for I think the rebuttal testimony of plaintiff does not extend to a contradiction of the defendant and his son Ben as to conversations had by them with plaintiff prior to the time of the accident, to wit, about noon of July 3d. My Brethren think otherwise, and, should the truth be as they think, yet it seems to me that, before a brand of such legal and moral obliquity as would inevitably fall upon the defendant should he be held to have knowingly, willfully, and wantonly placed a human being in a position where the most probable result would be death or great bodily harm to him, the evidence of it should be clear and unequivocal.
It is always held that fraud should be clearly proved. To place a human being in a position where he might meet death or great bodily harm is certainly equal to fraud in civil transaction, for fraud would only take from a person property; but willfully to do the thing just mentioned would most probably deprive him of life or limb. The proof of the latter should certainly measure up to the full requirement of the proof for fraud in civil transactions. The contradictions of the conversations that the defendant and his son Ben said that they had with plaintiff prior to the noon of July 3d should have been specific, and not merely general; for in those conversations defendant and his son Ben distinctly state that they informed the plaintiff that the horse that did the mischief was gentle, and broken to work to a wagon, but *Page 409 had not been broken to work to a mower, and that the defendant wanted plaintiff to hitch him with an old horse to work him to the mower. The result of such a denial, and the jury and court so holding, would be so serious to defendant — so nearly resembling, or perhaps equaling or surpassing, fraud — that the proof of it should, like the proof of fraud, be clear. The result of holding the allegations of the complaint thus proved would put the defendant in the position of knowingly and deliberately laying a trap for the plaintiff; lulling all suspicions of the plaintiff to rest, and tolling him into a position in which plaintiff would most probably lose his life or receive great bodily harm. In the case at bar the plaintiff did actually receive great and lasting injury. Surely no human being should be thus branded unless the question of his guilt be fairly presented to court and jury, and the facts warranting it clearly and distinctly proved. This, it seems to me, has not been done in this case.
On the following there is contradiction: Defendant's son Ben and a man by the name of Packard testify that when the team stopped after the first starting about noon on July 3d defendant came up and told plaintiff that if plaintiff was afraid to drive the team defendant's son Ben or Packard would drive it, and also defendant's son Ben told plaintiff the same thing, and that plaintiff replied, "No, I will drive the team myself"; Packard and Ben adding in their testimony that plaintiff also said, "I have broken horses for Snapp." Plaintiff, in rebuttal, denied that either defendant or defendant's son Ben told plaintiff that Ben or Packard would drive the team. Plaintiff, however, did not deny that he at the time said, "No, I will drive the team myself; I have broken horses for Snapp."
Such being the testimony, on an analysis of it what should be the result? First. Let us consider the testimony up to the moment the team stopped and the defendant came up. Wherein, up to that time, was defendant either false in his statements to plaintiff or negligent in his statements or acts? Second. Suppose at the time defendant came up to the stopped team that neither defendant nor his son Ben told plaintiff that defendant's son Ben or Packard would drive the team, would this omission have rendered the defendant *Page 410 negligent? In the light of what, according to the testimony above stated, defendant had previously told plaintiff, as the uncontradicted testimony shows, it would seem that the defendant would not have been negligent. This position is strengthened by the fact that under the general rule courts and juries are not unnecessarily to find witnesses perjured, but must reconcile testimony, if it can reasonably be done. Under said rule there is, perhaps, no necessity to find that either defendant and his son Ben and Packard committed perjury when they swore that defendant and his son Ben told plaintiff that the said son or Packard would drive the team, or that the plaintiff committed perjury when he said that they did not so tell him; for it is quite possible that the defendant and his son Ben did on the occasion say what the three witnesses said that they said; and it is also quite possible that the plaintiff did not hear them say it. If they said it, and plaintiff did not hear it, at that time, there was at that time nothing negligent on the part of defendant; and, if nothing of the kind whatever occurred, still, under the uncontradicted testimony as it appears to me in the record on appeal here, I cannot see wherein defendant was negligent or in default. It would seem that under the facts stated in the uncontradicted testimony neither defendant nor plaintiff could have anticipated that the horse would run away; that defendant had no more reason to think so than the plaintiff had; that plaintiff's opportunities for knowledge on the subject were equal to those of defendant; that the unfortunate accident that caused the melancholy result of injury to the plaintiff was one of the ordinary risks of plaintiff's employment; and that while all should, and doubtless do, much regret it, defendant cannot legally be mulcted in damages therefor.
Perhaps it may be proper to state that I have not overlooked the fact that the plaintiff testified that he told the defendant he would not "drive broncos or bad horses; that he was getting too old for that"; and also that plaintiff testified that the defendant told him that the horse was gentle, and that defendant's "old woman" could drive him. The first statement does not, in the light of the uncontradicted testimony, materially alter the ease; and the second statement *Page 411 must have meant, and plaintiff must have understood that it meant, that the horse was gentle in working to a wagon, and that the defendant's wife could drive the horse to a wagon.
For the foregoing reasons I think the order of the trial court denying a new trial should be reversed; that a new trial should be granted; and that the plaintiff should, if he so desires, have the privilege of amending his complaint so as to make his cause of action be one sounding in negligence, and not one sounding in knowing, willful, and wanton and reckless injury, and perhaps even fraud. But should the plaintiff still think that the facts of the case justify him in alleging his cause of action as one sounding in knowing, willful, wanton, and reckless injury, and perhaps fraud, he should, on a retrial thereof, be held to make clear proof that it is such.
It may perhaps be proper to remark here that should the complaint be one sounding in willful, knowing, and deliberate wrong and injury, such as is sometimes called "laying a trap" for plaintiff, then some decisions go to the extent that neither "assumptions of risks" nor "contributory negligenee" on the part of plaintiff could, by the defendant, be pleaded in bar of the action. *Page 412
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