
    (76 South. 160)
    No. 21415.
    RABBACH v. PELICAN ICE CO., Limited.
    (June 11, 1917.
    Rehearing Denied June 30, 1917.)
    
      (Syllabus by the Court.)
    
    Master and Servant <&wkey;109 — Injuries to Servant — Negligence oe Master.
    Where defendant shows that the animal which inflicted damages upon plaintiff was not vicious and plaintiff fails to prove fault on the part of defendants, his action must fail.
    [E'd. Note. — Por other cases, see Master and Servant, Cent. Dig. § 204.]
    Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.
    Action by William Rabbach against the Pelican Ice Company, Limited. Prom a judgment for defendant, plaintiff appeals.
    Affirmed.
    Lazarus, Michel & Lazarus, David Sessler, and Edward P. Kleinert, all of New Orleans, for appellant. Philip S. Gidiere, of New Orleans, for appellee.
   SOMMERVILLE, J.

Plaintiff alleges that while in the employ of the defendant as driver that he was instructed by the foreman of said corporation to feed the mules, and “that while doing so a certain mule belonging to the defendant company did suddenly, violently, and maliciously attack your petitioner, knocking him down, kicking him on the head, knee, and body; that while being down and kicked by said mule, and being unable to extricate himself, your petitioner called to- the said foreman for his assistance, which he refused and failed to render; that because of said injury he was injured to the extent of $10,021.50, for which he asks judgment against defendant.”

Defendant answered that plaintiff had voluntarily offered to assist the foreman in feeding the mules, and while thus engaged the animal referred to became frightened and knocked plaintiff down and stepped upon him; but it denies that its foreman refused to go to plaintiff’s assistance while he was down. Respondent avers that the mule which injured plaintiff was not known to be vicious, and that he was not vicious; that the injuries sustained by plaintiff were due to the fact that the mule was frightened by plaintiff as he entered the stall and, because of its fright, knocked the plaintiff down and stepped upon him. Defendant denies all fault on its part.

There was judgment for defendant, and plaintiff has appealed.

The evidence is to the effect that plaintiff was the driver of the mule which 'injured him in' the manner set forth in his petition; and that it had picked up a nail, and had been in its stall for several days. If, therefore, the mule was a vicious animal such fact was as well known, or perhaps better known, to plaintiff than to defendant. It was plaintiff’s duty to have been cautious and careful while feeding said animal. The evidence shows, as alleged by plaintiff in his petition, that the mule “did suddenly * * * attack your petitioner, knocking him down, kicking him on the head,” etc.

Plaintiff has failed to prove any fault or negligence on the part of defendant company. He has failed to prove “gross fault and wanton negligence of the foreman * * * who failed and refused to render his assistance to your petitioner.” The evidence on this point is to the effect that plaintiff was able to extricate himself from the stall in which he had fallen, or had been thrown down, before the foreman of the stable could get to him.

It does not appear that it was in the line of plaintiff’s duty to feed the mules in the stable; and there is some doubt whether he offered to feed the mules on the particular occasion referred to, or whether he was ordered to do so by the foreman. In either event, it is not shown that the defendant or the foreman had reason to believe that the mule which injured plaintiff was a vicious mule, or'that there was any danger to the person who fed it.

Plaintiff was certainly very painfully injured on the occasion referred to; but he has failed to prove that these injuries were due to the fault or neglect on the part of the defendant company, his employer. The defendant showed that the mule was not a vicious animal.

Judgment affirmed.  