Carney v. Douk Bros. Coal & Coke Co., 169 Ill. App. 124. they demanded to be taken out of the mine was named "Bob," and that he never heard a complaint about this mule "Old Stud;" but says they had a strike on hands and to settle the strike they had to take three or four away. I know "Bob" was a mule that was taken away, "Old Stud" and "Old Sailor," and that there were three or five mules objected to after several days. Witnesses for appellee testified that the mine manager was advised that "Old Stud" was a kicking mule. In fact, there was sharp conflict in the testimony upon the question as to whether or not the mine manager had knowledge of the fact that "Old Stud" was a kicking mule, and that he was removed from the mine on that account. The evidence tends to show that several months after these mules had been removed from the mine, and in about the month of December, 1908, "Old Stud" was brought back to the mine and the "New Mule" placed in the mine at about the same time, and placed in appellee's care; but appellee denies that he knew that the mule brought back to the mine was "Old Stud;" that he had been sheared in part and so changed that he did not know him; that he looked something like him, and he heard some of the drivers say that it was "Old Stud," and that he inquired of the boss driver if this mule that was brought back to the mine was "Old Stud" and the boss driver told him it was not, but told him it was a mule brought there from the lead works. The testimony upon the question as to whether or not appellee knew this mule, when he was brought back to the mine, was quite conflicting. While appellee admits that he knew the disposition of "Old Stud" to kick, denies that he knew this was "Old Stud." If it is true that appellee knew the disposition of "Old Stud" to kick before its removal from defendant's mine, and appellant also knew of such disposition, and in a few months returned "Old Stud" back to the mine, and when suspicions were aroused among the drivers that it was "Old Stud," and the manager as Carney v. Donk Bros. Coal & Coke Co., 169 Ill. App. 124. sured the men and appellee that it was not the mule, and that this was a mule brought from the lead works, and thereby deceived the appellee, then we do not think it can be said that he assumed the risk of being kicked by "Old Stud." We think that all of these matters were questions of fact to be determined by the jury, and we can see nothing in the evidence by which we can say that the verdict of the jury is manifestly against the weight of the evidence. Counsel for appellant claim that before one can recover on account of the vice of an animal it must be shown that the master knew that the animal had the propensity to commit that particular vice. If he means by that, that the mule must be shown to have the propensity to kick then we agree with him in his proposition, but if he means by it that the mule must be shown to have the propensity to kick while in the stable only, then we think his position is not in harmony with the rule laid down by our Supreme Court. In the case of Manufacturers' Fuel Co. v. White, 228 Ill. 187, the court says: "Instructions given did not require that the jury find, as a necessary element of plaintiff's cause of action, that the animal had a vicious and dangerous propensity to kick mankind, and it is urged that a propensity to kick, which was merely an evidence of illtemper and not the result of a desire to injure a human being, is not sufficient to establish the liability of the master, the owner of the animal, even where he has knowledge of its propensity and where the servant injured has no such knowledge and is not chargeable with such knowledge. * * * On reason we are unable to perceive any distinction between directing the use of an animal that is dangerous on account of its peculiar inclination to kick under certain circumstances, even though its efforts in that regard be not particularly directed against mankind, and directing the use of an instrumentality or appliance of a mechanical nature. which is dangerous to the servant." In other words it Vol. CLXIX 9 Carney v. Donk Bros. Coal & Coke Co., 169 Ill. App. 124. is sufficient to show that the disposition of the mule was to kick, and need not be confined to a particular circumstance of its kicking, making the real question whether or not it had a propensity to kick. There was evidence tending to show that the "New Mule" had kicked one time while at work; that the manager was advised of this, and was also advised that this "New Mule" was liable to be a kicking mule; but the injury in this case seems to have been inflicted by a kick from the mule "Old Stud," and we do not regard it as very material whether the master was advised of the kicking propensity of the "New Mule" or not. Appellant claims that the court erred in refusing some of its instructions, and the first one complained of is quoted on page 29 of their brief, which states, "The Court instructs the jury that if you believe from the evidence that the plaintiff was kicked by the mule known as Old Stud mule, and that the plaintiff himself before that time knew that this mule had the propensity or inclination to kick, then he assumed whatever risks there were of being kicked in handling or working with this mule and cannot recover in this case under such facts, and you should find the defendant not guilty.” We think this instruction was misleading, in this, appellee did not deny but what he knew of the kicking propensities of the mule called "Old Stud" but he did deny that he knew this was the same mule, and we think the instruction was vicious in not recognizing that feature of appellee's contention. This instruction also should have been confined to the first and second counts which were directed to the "Old Stud" mule. Complaint is also made of the refusal of the court to give the following instruction: "The court instructs the jury that if you believe from the evidence in this case that the plaintiff was a mule feeder in defendant's mine, and that as such he had charge of all the mules in defendant's mine, including the mules mentioned in plaintiff's declaration, and that Carrey v. Donk Bros. Coal & Coke Co., 169 Ill. App. 124. he had equal opportunity with the defendant to know or learn of any vicious habits of such mules, or their propensities to kick, if they had such propensities, then in law he assumed whatever risks there was on account of its conditions and would not be entitled to recover, if you believe from the evidence he did have such opportunity." The principle involved in this instruction was fully given in defendant's instruction No. 9, as shown by page 63 of the abstract. The appellant also complains of the refusal of the court to give the following instruction: "The court instructs the jury that if you believe from the evidence in this case that the plaintiff at the time the mule called Old Stud was returned into defendant's mine in 1908, knew that he was the same mule that had formerly been in said mine or that by the exercise of ordinary care he could have known, or that he had equal opportunity with the defendant of discovering such fact then the plaintiff is not entitled to recover in this case and you should by your verdict find the defendant not guilty." We think the court properly refused this instruction as it is applicable to but two counts of the declaration and not to the others. It ignores the plaintiff's knowledge as to the disposition of this mule to kick and caused the whole case to turn upon the question of the knowledge of the plaintiff as to the return of the mule, eliminating all other questions and yet directs a verdict. We think the court ruled properly upon this instruction. While it is true that the evidence in this case in some of its features is not very clear and convincing, as appears from the record, yet the evidence of appellee standing alone would be sufficient to warrant a jury in finding the issues in his favor, and the testimony being quite conflicting as to much of the testimony in the case, they were matters, in our judgment, to be settled by the jury, and we cannot say that the verdict of the Smith v. E. St. L. R'y Co., 169 Ill. App. 132. jury is manifestly against the weight of the evidence, and the judgment of the Circuit Court is affirmed. Judgment affirmed. Morris L. Smith, Administrator, Appellee, v. East St. Louis Railway Company, Appellant. 1. NEGLIGENCE-when motorman guilty of. Held, that the jury were warranted in finding that the child killed was on the track of the defendant traction company or so close to it and between the track and a pile of brick by the side of the track that it imperiled the life of the child and that the motorman ought by reasonable diligence to have observed the child and its peril and avoided the injury. 2. NEGLIGENCE-how may be established. The fact of negligence may be established by circumstantial evidence. 3. PRESUMPTIONS—when not indulged. A presumption cannot be based upon a presumption of negligence, and the existence of a certain fact cannot be reasonably inferred from the evidence if the existence of another fact, entirely inconsistent with the first, may be inferred as certainty from the evidence. 4. INSTRUCTIONS-when upon question of negligence proper. Held, that an instruction upon this subject as follows was proper: "If you believe from the greater weight of the evidence that no witness or witnesses saw or observed the immediate cause of the injury to the deceased, then in determining the evidence the immediate cause of the injury to deceased, you have a right to consider all of the facts and the circumstances detailed in evidence by the witnesses in the case and you may find the immediate cause of the injury to be proven by, or from any facts or circumstances, if any, from which you may believe the immediate cause of the injury to the deceased may be rightfully and reasonably inferred." The re 5. INSTRUCTIONS-when refusal of correct will not reverse. fusal of a correct instruction will not reverse if its contents are substantially contained in another instruction given. Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the HON. MORTIMER MILLARD, Judge, presiding. Heard in this court at the March term, 1911. Affirmed. Opinion filed November 11, 1911. Rehearing denied April 3, 1912. |