Haneman

concur upon the We ground that the evidence does not show knowledge on the part of the defendant of the vicious character of the horse. We are not prepared to say that the evidence is not sufficient to sustain a finding that the horse was in fact vicious.

A petition for a rehearing of this cause was denied by the district court of appeal on September 14, 1908, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 15, 1908.

This action was brought to recover damages for injuries received by plaintiff from being kicked by a horse owned by defendant while plaintiff was in its employ and driving the horse in connection with such employment. A verdict was rendered for plaintiff, on which judgment was entered. This appeal is from the judgment and the order denying defendant’s motion for a new trial.

It is alleged that at the time of the injury plaintiff was employed, and for several months prior thereto had been employed, by the defendant to work in and about its meat market in the city of San Jose and vicinity, and to take and deliver meat to defendant’s customers; that for such purpose defendant supplied plaintiff with a horse, attached by means of a harness to a meat delivery wagon; that the horse was owned by defendant, and kept for the purpose of drawing the delivery wagon, but that at all times said horse “was vicious of temper, was of a ferocious and vicious disposition, and was of a kicking nature, possessed a habit of kicking and striking at whomsoever approached him or was within reaching distance of him.” That the vicious nature of the horse was well known to defendant, and was not known to…