Weigand v. Atlantic Refining Co. , 189 Pa. 248 ( 1899 )

Opinion by

Mr. Justice Fell,

It appeared at the trial that the plaintiff at the time he was injured was employed by the defendant company to deliver oil to retail dealers. He drove a pair of mules which had been owned by the company and used in its business for a number of years. He was an experienced driver, but had had charge of this team only four or five days. In the afternoon, after having returned to the stable and cleaned the mules, he went into the stall for the purpose of leading one of them to the blacksmith shop. As he took hold of the halter the mule threw its head around, struck the plaintiff and knocked him down, and then struck and kicked him.

As it was not shown that the mule had before injured or attempted to injure any one or that it had manifested in any way a vicious disposition, there was nothing in the testimony to warrant a recovery, and the judgment of nonsuit should stand unless it appears that offers of testimony were improperly rejected.

For the purpose of showing that the mule was vicious, an offer was made to prove by a witness called that one of the mules of the team prior to the kicking of the plaintiff had kicked and injured another driver. This was the whole offer. It was not proposed to show the time when or the circumstances under which the injury was inflicted, or which mule had done it. Indeed, it was stated in connection with the offer that no one knew which mule had kicked the other driver. It may require but little to establish the vicious disposition of a mule, but unless it is to be taken wholly for granted there must be some basis for a reasonable inference, and in this offer we see none. A mule may kick under circumstances which do not indicate a vicious disposition generally, as in case of sudden fright, or under provocation when teased, or in consequence of careless management. That it had kicked some months or years before, or when untrained, would not be reason for the inference of continued viciousness. The fact that one of the pair had kicked, which one not being shown, would not justify the conclusion that both were vicious, or that the injury had been inflicted by the one which had kicked a driver before.

The offers to prove that the company’s manager had been told that the team was unsafe fixed no time with reference to the plaintiff’s injury when the communication was made, except that it was within two years thereof. It was not proposed to show that any facts were stated to him, but the mere opinion of a witness, not that the mules were vicious, but that they were unsafe. They might have been unsafe in many ways, as the result of timidity or want of training, without showing any indication of either general viciousness or a disposition to injure any one when in their stalls.

The judgment is affirmed.