## Facts

- S. W. Tolin owned and operated a public ferryboat that transported passengers, wagons, and livestock across a river.
- L. R. Terrell drove his wagon, hitched to a team of mules, onto Tolin’s ferryboat as a paying patron.
- Terrell initially placed his mules where they could not be reached by any of the ferry’s horses.
- Because the boat had a leak, a ferry employee directed Terrell to move his team to a different location on the boat.
- Following that direction, Terrell moved his mules alongside a gray mare kept on the ferry, placing the animals within biting distance.
- Evidence at trial supported that the gray mare had a vicious tendency to bite and that Tolin knew of that tendency.
- Terrell unhitched his mules during the crossing so they could move freely if trouble occurred, and he stayed near the end of the boat for most of the passage.
- As the ferry was nearing the opposite shore, Terrell returned to re-hitch the mules to his wagon.
- While Terrell was picking up the lines to reattach them, the gray mare thrust her head out and bit one of the mules.
- The bitten mule kicked Terrell, causing severe and permanent injuries.
- Terrell sued Tolin, alleging negligence for (1) directing placement of the mules within reach of the mare and (2) failing to provide a screen or guard between the mare and other stock loaded on the ferry.
- The jury returned a verdict for Terrell and awarded $5,500 in damages; judgment was entered on the verdict.
- Tolin appealed to the Kentucky Court of Appeals.

## Issues

1. Whether a ferry operator may be found negligent for failing to use reasonable precautions—such as a screen or guard—when he keeps a horse with known vicious propensities on the ferry and directs a patron’s mules to stand within biting distance, resulting in injury when the mule reacts and kicks.
2. Whether Terrell’s conduct (including unhitching the team and later retrieving dropped lines while rehitching) constituted contributory negligence as a matter of law, requiring judgment for Tolin.

## Decision

- The Kentucky Court of Appeals affirmed the judgment for Terrell.
- The court held the evidence permitted the jury to find that Tolin failed to use ordinary care in arranging and separating the animals on the ferry, given evidence of the mare’s biting tendency.
- The court treated the mule’s kicking reaction as a foreseeable consequence of placing the animals within reach, and thus not too remote for proximate-cause purposes.
- The court declined to hold Terrell contributorily negligent as a matter of law; the jury could reasonably find he acted with ordinary care under the circumstances, including where he acted under a ferry employee’s direction.
- The court found no reversible error warranting a new trial and left the damages award undisturbed.

## Legal Principles

- A public ferry operator owes patrons a duty of ordinary care in operating the ferry and in managing conditions on the boat that may expose patrons to danger.
- If the operator knows (or the evidence allows a finding that he knew) a domestic animal used or kept in ferry operations has vicious propensities, ordinary care may require reasonable protective measures, such as separating the animal from patrons and their stock with a screen or guard.
- Proximate cause may be satisfied where the operator’s failure to separate animals allows a known biting horse to bite another animal and it is reasonably expected that the bitten or startled animal may react in a way that injures a nearby person.
- Courts may treat commonly known animal behavior—such as the tendency of mules to kick unpredictably—as part of the foreseeability analysis, even if there is testimony that a particular mule is usually gentle.
- Contributory negligence is generally a jury question when the injured patron’s actions are ordinary acts incident to ferry transport and are taken in response to the operator’s directions or in an effort to manage the known risks.

## Conclusion

The Kentucky Court of Appeals affirmed a verdict for Terrell, holding that a jury could find Tolin negligent for placing Terrell’s mules within reach of a mare with a known tendency to bite and for failing to provide a guard, and further holding that Terrell’s alleged contributory negligence was not established as a matter of law.


Tolin v. Terrell, 117 S.W. 290 (1909)