
    CASE 19. — ACTION BY L. R. TERRELL AGAINST S. W. TOLIN, FOR DAMAGES FOR PERSONAL INJURIES
    March 25, 1909.
    Tolin v. Terrell
    Appeal from Boone Circuit Court.
    J. W. Cammack, Circuit Judge.
    Judgment for plaintiff, defendant appeals.
    Reversed.
    1. Negligence — Proximate Cause. — -To make one liable for negligent injuries, negligence must be such1 that the injuries would not have occurred without it.
    2. Negligence — Proximate Cause — Jury Questions. — While ordinarily the question of proximate cause is for the jury, where the injury is connected with the alleged - negligence only by «speculation and conjecture, th© question is for the court.
    3. Evidence — Judicial Notice — Kicking Propensities of the Mule. —It is a matter of common knowledge that a mule is prone to kick.
    4. Animals — Personal Injuries — Contributory Negligence — Going Behind Mule. — It is contributory negligence to go behind a mule, without warning to the mule, to pick up lines for the purpose of placing them across the mule.
    5. Ferries — Injury to Person on Ferryboat — Proximate Cause. —Where plaintiff drove his mule on a ferryboat and the mule stood 'some three feet from the treadmill horse which propelled the boat, the treadways being fenced from the driveway by a frame about the height of the horse’s shoulders, it could not have been reasonably anticipated that, because there was no screen between the treadway and the driveway,- the horse would reach over the framework and bite the mule and cause it to kick, so that the absence of such screen was not the proximate cause of injuries to one who was kicked by the mule.
    JOHN S. GAUT, T. W. BULLITT, A. B. ROUSE AND N. E. RIDDELL, far appellant.
    D. E. CASTLEMAN and CLORE, DICKERSON & CLAYTON, for appellee.
   Opinion op the Court by

William Rogers Clay, Commissioner

Eeversed.

Plaintiff, L. . E. Terrell, instituted this action against defendant, S. W. Tolin, to recover damages for personal-injuries alleged to have been caused by the negligence of defendant. The jury returned a verdict in his favor in the sum of $5,500, and from the judgment based thereon this appeal is prosecuted.

At the time of plaintiff’s injury, and for some time prior thereto, S. W. Tolin owned and operated a ferryboat between a point near Petersburg, Ky., and Lawrenceburg, Ind. The boat was about 60 or 65 feet in length, and in the general'form of a parallelogram. Its width, however, was greatest in the center, and from that point it gradually narrowed as the ends were approached. The boat was operated by horse power; there being an'inclined treadway upon each side of the boat, upon which the horses stood while propelling the boat. These treadways were fenced about with framework of about the same height as the shoulders of the horses. There was a drive or gangway in the center of the. boat, about 9 feet 10 inches wide, between the treadways. The front feet of the horses were raised about 2% feet from the floor of the gangway. When a team drove on the gangway, it would be from 2 to 3 feet from the inclined treadway. At about 7:30 o’clock on the morning of November 6, 1905, plaintiff drove his wagon, which was hitched to a team of mules, on the ferryboat. According to the testimony of plaintiff’s witnesses, he drove the team to a -position where they could not be reached by either one of the ferry horses; but, owing to the leaky condition of the boat, he was told by one Hartman, who was in charge of the boat, to back his team to a position that brought them alongside, and in biting distance, of a gray mare engaged in operating the inclined treadway on the right side of the boat. After driving his team to this position, plaintiff unhitched the mules, as he claims, for the purpose of having them free in ease any accident happened to the boat. Accompanying Terrell were four children, three boys and one girl; the oldest boy being about 15 years of age. After unhitching the team, plaintiff went to the end of the boat where the ferryman was steering, and from that time on he (Terrell) steered the boat.' During the passage over the river, a negro by the name of Thornton was placed at the pump, which was a few feet ahead of the team, and continued to use the pump until the boat had about crossed the river. ‘When the boat was within a few feet of the Indiana shore, Hartman took charge of the rudder and relieved plaintiff, who then proceeded to hitch up his team. While he had gone, his lines had dropped on the floor. As he picked up' the lines and was attaching them to the brake, the gray mare stuck out her head, bit the right-hand mule on her rump, and the mule then kicked plaintiff, severely and permanently injuring him.

Plaintiff’s testimony was also to the effect that there was no screen or guard between the gray mare and the mule that would prevent the former frofn biting the latter; furthermore, that the gray mare was tied so long that she could easily reacia her head out. Several witnesses testified that the gray mare was in the habit of biting at stock or persons who would come near; that this disposition of hers was well known to Hartman, the agent in charge of the boat. There was also testimony to the effect that the mule that did the kicking was of a gentle disposition, and had never, prior to that time, shown any tendency to kick. On the other hand, the testimony for the defendant was to the effect that the plaintiff drove his team upon the boat and stopped it at a point where the wagon was next to the gray mare, and the gray mare could not possibly have reached the mule that, it is claimed, was bitten on the rump. There was also testimony tending to show that, even had the mule team been located at the point where it is claimed by plaintiff they were stationed, it would have been a physical impossibility for the gray mare, situated and tied as she was, and engaged in propelling the boat,.to stick our her head and cover' the distance between her and the mule. The negro, Thornton, who was engaged in pumping, testified that when plaintiff drove on the boat, he drove in so far that the mare could not bite the mnle; that the mare was tied with a halter rope in such fashion that she could not turn her head; that, as the boat approached the' Indiana shore, Terrell and Hartman began talking about the mules, and Hartman remarked, “The mules will'kill yon some time;” that, when plaintiff went to his team to hitch up, he picked up the lines, they touched the mule, and the mule kicked; that the mare did not bite thé mule. There was also testimony to the effect that the gray mare was- of a gentle disposition, and had no tendency to bite stock or people who came close to her. Two witnesses for the defendant testified that the mnle which did the kicking had a tendency to kick, and they had seen it attempt to kick on two occasions before that.

It is the contention of plaintiff- that the failure of defendant to have a screen or guard between the gray mare and stock that might be upon the boat, coupled with the fact of the vicious tendency of the mare, of which knowledge was brought home to the agent and manager of the boat, was the direct and proximate cause of plaintiff’s injury. Hpon one point all the witnesses in the case agree; i. e., that plaintiff was engaged in taking up and tying his lines at the time he was injured. In order to hold defendant liable in this case, his negligence must have been • such that, without it, the injury'would not have happened. While it is true'that the question of proximate cause is ordinarily one for the jury, yet, where the evidence connecting the plaintiff’s injuries with the defendants alleged negligence amounts to mere specnlation or conjecture, no case for the jury is presented. No one could tell, from the evidence before us, whether plaintiff was injured as tlie result of walking behind his mule without warning and raising the lines, or because the gray mare bit the mule. The mule in question was three years old. In spite of the fact that there was testimony to show that this mule was of so gentle a disposition the children could play at its heels, it is a matter of common knowledge and common experience that there is no telling when or under what circumstances a mule will or will not kick. The only way to escape danger from the feet of a mule is not to go within the radius of its heels. He who goes within these limits assumes the risk of being, kicked; and especially so when, without warning to the mule, he picks up the lines, which have been lying on the floor, 'passes them across the mule, and attempts to tie them at the brake.

Our conclusion in this case is that the evidence for the plaintiff utterly fails to show that the negligence of defendant was the proximate cause of plaintiff’s injury. If the gray mare had bitten or kicked the plaintiff, and injured him, such act on the part of the mare might have been within the contemplation of the owner of the boat; but certainly it could not have been reasonably anticipated that, because there was no screen on the boat, the old gray mare would reach a distance of at least three feet and bite a mule on the rump, and that the mule would kick. We therefore conclude that the court erred in not giving the peremptory instruction asked for by the defendant. If the evidence be substantially the same upon a retrial, the court will instruct the jury to find for the defendant.

Judgment reversed, and cause remanded for a new trial consistent with this opinion.

Lassing, J., not sitting.  