(after stating the facts). Counsel for appellant insist that the court erred in not directing a verdict in favor of appellant. The law in regard to the negligence of the master in furnishing his servant with a vicious animal to work stands on the same footing as furnishing him a dangerous appliance. The rule is aptly stated by Mr. Thompson as follows: “But if a master furnishes for the use of the servant a horse or other animal of such a vicious nature that the servant is liable to be injured in consequence of its viciousness, the master will be liable if he. knew, or by the exercise of ordinary care could have known, of the vicious propensities of the animal, unless the servant knew that the animal is dangerous, but nevertheless continues to "use it,. in which case he assumes the risk of injury from it.” 4 Thompson on Negligence, § 4041. To the same effect, see 26 Cyc. 113, and cases cited in note 80; 1 Labatt on Master & Servant, § 206.
In the 'Case at bar there was sufficient evidence adduced at the trial on the part of the appellee from which the jury might infer that the animal was of a vicious nature, and that that fact was not known to appellee; but there is no evidence which would warrant the jury in finding that the coal company knew that the mule was vicious, or .by the exercise of ordinary care could have known it. All the employees of the company who testified on the subject, except one, said that the mule was not vicious. One of the employees testified as above stated to facts from which the jury might have inferred that the mule was vicious, but he was. not shown to have been the keeper of the mule, or to have been in such position that it could be said that his knowledge was the master’s knowledge.
2. On the question of the defective condition of the entry, we are of the opinion that under the facts disclosed by the record the appellee is not entitled to recover, and that this case in that respect is controlled by the principles announced in the case of St. Louis, & San Francisco Rd. Co. v. Hill, 79 Ark. 76. In that case a train was passing over a bridge of the railroad company, and the bridge gave way and wrecked the train. A brakeman on the train was killed. The engine was derailed before it reached the bridge, and there was evidence tending to show that the bridge was sufficient to sustain the train, had it remained upon the track, and that'the derailment of the train caused the the bridge to give way. The court said: “The bridge in question was constructed solely for the passage of defendant’s trains on the track over Crowder Creek. There was evidence tending to prove that it was sufficient for that purpose. There is no evidence tó show, and plaintiff does not contend, that the derailment of the train ¡was owing to defects of the bridge. That being true, the derailment did not prove that the defendant was negligent in the construction or maintenance of the same.”
So, in the case at bar it may be said that the entry was sufficiently wide to permit the passage in safety of the mine cars, and it could not be reasonably anticipated by the coal company that its employees would be injured by being kicked or otherwise falling between its cars and the walls of the entry.
The case at bar does not come within the rule announced in McNamara v. Logan, 100 Ala. 187, 14 So. 175. There the servant was injured while engaged in spragging the cars. The testimony showed that it was his duty to walk along beside the cars and to sprag them when they started down a steep grade. The entry was too narrow for that purpose at the place where the servant was injured while engaged in the performance of his duties of spragging or blocking the cars, and the court held that, the evidence being in conflict as to whether the entry was dangerously narrow, or the cars dangerously 'near the wall at that point, the question of negligence was for the jury. In the present case, there was no testimony to show that it was the duty of the driver to alight from the cars to sprag them. On the contrary, the uncontradicted testimony shows that the drivers always rode on the cars while engaged in the performance of their duties.
Under the testimony in the case at bar there was no necessity for sufficient room betweeen the sides of the car and the walls of the entry for the use of the driver in spragging, and consequently there was no defect in the condition of the entry where the injury occurred. A master is not bound to furnish absolutely safe appliances, but only to exercise reasonable care to furnish such appliances as are suitable for the purposes for which they are intended, and to exercise ordinary care to see that they are kept in such condition.
There is no presumption of negligence in a case like this. The burden of showing that the appellant was negligent in regard to the matters alleged in appellee’s complaint was upon him. Having failed to establish negligence in regard to either of the allegations of his complaint, the verdict of the jury is without evidence to support it.
Therefore the judgment must be reversed, and the cause remanded for a new trial.