
    Frederick W. Helmke, Resp't, v. Henry I. Stetler, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Master and servant—Vicious animals.
    Plaintiff, who was employed by defendant, was injured while driving, a horse which defendant had furnished for his use. The horse kicked off the dash board and then kicked so high as to strike plaintiff’s knee. There was evidence that defendant knew that the horse had kicked another person, and that he gave plaintiff no warning of its vicious propensities. Held, that such omission was sufficient to impose liability for the injury.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    
      Abram A. Demarest, for app’lt; 0. P. Hoffman, for resp’t.
   Dykman, J.

This is an action for the recovery of damages resulting to the plaintiff from a kick of a horse.

The plaintiff was in the employ of the defendant as a foreman ' upon his farm, in Rockland county, and this horse was furnished to the plaintiff by the defendant to be used in the course of Ms business.

The testimony of the plaintiff was that while he was driving the animal along the road at a moderate rate of speed, she suddenly kicked off the dash board, and immediately gave another kick so high that her heels struck the knee of the plaintiff and inflicted upon him a very serious and dangerous injury.

There was no dispute about these facts.

The plaintiff and another witness gave testimony which tended to show that the defendant' knew that the same animal had kicked a man before while he owned her.

The jury was carefully and correctly instructed respecting the law which controls the case by the trial judge, and the plaintiff recovered a verdict of $1,000.

We must, therefore, assume that all the questions of fact were found in favor of the plaintiff, and that being the case, this appeal cannot prevail.

This is an appeal from the judgment and order denying the motion for a new trial upon the minutes of the court.

It is the duty of employers in all cases and under all circumstances to exercise care and prudence to protect those in their, ■employment from exposure to unreasonable danger.

In all cases where the danger is not apparent and visible, it is the duty of the employer to warn his servant of the risk he is about to assume.

That rule applied to this case required the defendant to inform the plaintiff of the vicious propensity of the horse which was furnished for his use, as the jury has found that such propensity was known to the defendant.

The defendant gave the plaintiff no such warning, as the jury must also have found under the charge of the trial judge.

That omission of duty was sufficient to impose liability upon the defendant for injury which resulted to the plaintiff from the kick of the horse.

If the defendant had informed the plaintiff of the vice of this animal, he could have exercised his discretion in respect to the acceptance of the service, and if he had accepted the position and consented to use her, he would have been forewarned of his danger, and conducted himself accordingly.

But without notice or warning he had the right to assume that the defendant had exercised proper care in the selection of the implements and agencies with which he was to prosecute his service, and being thus lulled into security he was unprepared for the sudden outbreak of violence which caused his injury.

These are familiar principles applicable to all cases of this character and require no reference to authority for their support.

The appeal cannot, therefore, prevail, and the judgment and order must be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  