Scottish Court of Session Decisions

James Fraser, stableman, Brechin, sued his employer John Hood, carting contractor there, for damages for injuries sustained by him from the bite of a horse, the property of the defender.

He averred—“The pursuer was in the employment of the defender as a carter for about five years till 1st January last, when he was appointed stableman, and continued in that situation until the occurrence of the accident after mentioned. It formed part of the pursuer's duties as stableman to attend to the feeding of the horses kept in Mr Hood's stable, and before leaving for the night to look round all the horses in the stable and see that they were properly fastened up.” “On or about the evening of Tuesday the 31st of May last, the pursuer entered the stable about nine o'clock for the above purpose. He was immediately followed by the defender, who called his attention to the fact that one of the horses had broken loose from its halter, and desired him to fasten it on again. The pursuer proceeded up the stall to do this, but on his stooping down to lift up the halter, the horse bit and seized his left arm, crushing it severely. This occurred in the presence of the defender.” “The horse in question, which was an entire horse, was a vicious and dangerous animal, and on several

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previous occasions it had attacked, bitten, and severely injured those who were in charge of it. On the 6th of June, about a week after the accident above mentioned, it attacked the man in charge of it, and he was obliged to kill it in self-defence. The defender well knew of the vicious and dangerous character of the horse in question. The said horse was usually muzzled when out driving, and in the stall he was secured by two halters, the one a leather band round his neck, the other a halter with blinders. He was frequently in the habit of breaking loose from the last mentioned halter, and it was this halter which the pursuer was endeavouring to put on when the accident happened. The said halter had been frequently repaired, and it was not strong enough for the purpose.” “The said personal injuries were caused to the pursuer by reason of defects in the plant connected with or used in the business of the defender, in respect that he so used the said vicious and dangerous horse and defective halter. The said accident was due to the defender's fault and negligence in so keeping, and using in his business said vicious and dangerous horse.”

The defender pleaded—“The pursuer being in the knowledge of the character of the horse in question, and having continued to work and attend same without objection or complaint to the defender, the defender should be assoilzied with expenses.”

The Sheriff-Substitute ( Robertson) on 27th October 1887 allowed a proof. The pursuer appealed to the Court of Session for jury trial, and lodged an issue.

The defender argued—The pursuer accepted the ordinary risks of his employment, and the accident was one of these. His employment as stableman included the charge of this horse. His averments showed his knowledge of the horse's character. This horse was not “plant” in the sense of 43 and 44 Vict. cap. 42, sec. 1, sub-sec. 1. This case was distinguished from Haston v. Edinburgh Tramways Company, March 11, 1887, 14 R. 621. In that case the horse was being used. Here the horse was standing in the stable. There was here no fault on the master's part— Keir v. Crichton, February 14, 1863, 1 Macph. 407. Knowledge of the defect barred the pursuer from recovering— M'Gee v. Eglinton Iron Company, June 9, 1883, 10 R. 955, 20 S.L.R. 649; Thomas v. Quatermain, 18 L.R., Q.B.D. 685.

Argued for the pursuer—Knowledge of risk barred action when the risk was ordinary, but here the risk was extraordinary— M'Leod v. Caledonian Railway Company, October 31, 1885, 23 S.L.R. 68. The case of Haston decided that a horse was “plant”— Yarmouth v. France, 19 L.R., Q.B.D. 647. A workman who was aware of the master's knowledge of the defect was not under an obligation to give notice of it.

At advising—