Anderson v. Welty, 7793

Decision Date29 March 1960
Docket NumberNo. 7793,7793
Citation334 S.W.2d 132
PartiesDewey ANDERSON, Plaintiff-Respondent, v. Merlin WELTY and John Welty, co-partners d/b/a Welty Brothers Sales Pavilion, Defendants-Appellants.
CourtMissouri Court of Appeals

Don Russell, Nevada, Robert Stemmons, Mt. Vernon, for defendants-appellants.

Edward V. Sweeney, Monett, Everett E. Teel, Nevada, for plaintiff-respondent.

STONE, Presiding Judge.

In this jury-tried case, defendants, who operate a sale barn in Nevada, Missouri, appeal from a judgment for $5,000 obtained by plaintiff, a farmer and stockman then fifty-five years of age, for personal injuries sustained in the sale barn on June 6, 1953. We pass defendants' initial appellate complaint, i. e., that the trial court erred in overruling the motion for a directed verdict at the close of plaintiff's evidence, because, by thereafter offering evidence, defendants waived any such error. Snead v. Sentlinger, Mo., 327 S.W.2d 202, 203(1); Wilt v. Waterfield, Mo., 273 S.W.2d 290, 293-294(2); Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, 607(12). But, the further complaint of error in overruling defendants' motion for a directed verdict at the close of all of the evidence requires a factual review, in which we should and do give appropriate recognition to the basic principle that, in determining whether a submissible case was made, we must consider the evidence in the light most favorable to plaintiff-respondent, must accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendants' evidence except insofar as it may aid plaintiff's case. Daniels v. Smith, Mo., 323 S.W.2d 705, 706(2); Denney v. Spot Martin, Inc., Mo.App., 328 S.W.2d 399, 401(1); Pieper v. Lewis, Mo.App., 321 S.W.2d 4, 5(2); Songer v. Brittain, Mo.App., 272 S.W.2d 16, 20(7).

Defendants' sale barn is about one-half block long, north and south. The office and cafe are in the south end, north of them is the sale ring, and the cattle and hog pens are north of the ring. Two alleys, each some four and one-half to six feet in width, run north from the sale ring with rows of cattle and hog pens opening off each alley; and, near the north end of the barn there is an east-and-west alley not only connecting the two north-and-south alleys but also continuing in an easterly direction to the loading dock. Cattle and hogs unloaded at the dock go into the east-and-west alley and, after being driven to the west in that alley, are turned to the south into one of the two north-and-south alleys and then into a pen or pens opening off that alley. When sales are conducted, the same north-and-south alleys are used and animals are driven into and out of the sale ring through openings (at other times closed by sliding doors) at the south end of the alleys. Completely encircling the pen area is an overhead walkway, about four to five feet in width and about ten feet above the ground, with easy access to the walkway provided by three outside stairways.

June 6, 1953, the date of plaintiff's injury, was a sales day at defendants' barn. That morning plaintiff had unloaded three cows and three calves at the barn, and immediately after lunch he 'went to see if they had the right cows with the right calves.' Whether he could have done this from the overhead walkway was (so plaintiff said upon trial) doubtful; but, in any event, he went into the alleys for that purpose, there met the Prewitts (father and son) 'looking for feeder pigs,' and stopped to visit with them in a north-and-south alley at a point about fifteen to twenty feet from the north end thereof. Shortly thereafter, some six to eight cows driven by one Wilson, defendants' employee, turned from the east-and-west alley and headed south in the north-and-south alley where plaintiff and the Prewitts were standing. The cattle were 'kind of running like they were scared'--'moving right along, crowding up that alley.' With plaintiff facing toward the south, he did not see these cattle and did not know of their approach until the elder Prewitt (facing north) said 'Look out, here comes some cattle' when they were about ten feet distant. The elder Prewitt got into an unlatched hog pen and the younger Prewitt leaped over the west fence of the alley into another pen, so neither was injured. But, as plaintiff was attempting to climb over the west fence, he was caught 'astraddle' of the fence and sustained a severe injury to his left leg when the crowding cattle twisted it around a post.

Plaintiff's submitted theory was that, for years prior to the date of plaintiff's injury, patrons attending sales habitually stood and congregated in the alleys in defendants' barn; that defendants and their employees, fully cognizant of that fact, had followed the custom and practice of warning persons in the alleys before driving cattle through them, all of which was known to, and relied upon by, plaintiff; but that, on the occasion under consideration, defendants were negligent in that their employees drove cattle into and through the alley, in which plaintiff and the Prewitts were standing, without any prior warning. The elder Prewitt testified that he had attended sales at defendants' barn since 1932, that patrons congregated in the alleys with 'as many as seven or * * * twelve in each alley,' and that he 'never heard any objection from anybody about being in those alleys.' The younger Prewitt said that he had attended sales at defendants' barn 'for a long time * * * off and on all of my life,' and that 'it was a common practice for people to mill around in those alleys'--'they are usually crowded before the sale'--'people have always walked around in those alleys.' Plaintiff's testimony was that for many years he had attended sales at defendants' barn 'about every week and sometimes in between,' that patrons 'would stand in them alleys and look over the stock and get ahold of the bags to see if the cows was OK'--'every Saturday that I was there, they were in those alleys'--'as many as twelve or fourteen in each alley I have seen,' and that he had never heard any objection to such use of the alleys. Both of the Prewitts and plaintiff stated positively that no one was in front of the cattle which crowded down the alley and injured plaintiff and that there was no prior notice or warning that the cattle were coming.

Defendants' proof was to the effect that the alleys were for the movement of cattle and not for use by customers, that defendant Merlin L. Welty, the auctioneer, over the public address system frequently 'warned the people to stay out of the alleys,' that both defendants 'quite often' instructed their employees in the sale barn to keep the alleys clear, and that such employees (as one of them put it) 'try to keep (people) out as much as we can.' But, defendants' evidence clearly confirmed plaintiff's contention that, regardless of the availability of the overhead walkway and the efforts made to keep patrons out of the alleys, they frequently went into the alleys, used them for closer inspection of cattle and hogs, and stood in them during sales. In fact, one of defendants' employees readily admitted that 'lots of times' defendants 'would have to stop the sale until the people got out of the alleys.' The unmistakable import of defendants' evidence was that they had actual knowledge of their patrons' use of the alleys. And, when plaintiff's counsel insisted that 'it was the custom and regular practice of your men any time they were going to herd cattle down the alley to give warning to the people in the alleys that they were coming,' defendant Merlin L. Welty agreed, 'Yes.' To the further statement of counsel that 'the people in the alleys could expect that,' defendant Welty responded, 'Yeah, I guess that's so'; and finally when asked whether, 'if on this occasion (when plaintiff was injured) * * * these cattle were herded down through there without any warning, that would be a violation of your custom and regular practice,' the same defendant answered, 'I think that would be so.' Thus conceding their custom and practice to warn before driving cattle through the alleys, defendants vigorously contested the factual issue as to whether any warning was given on the occasion under consideration.

Defendants' version was that employee Dean preceded the cattle down the north-and-south alley, that plaintiff was sitting on the west fence of the alley with 'his feet locked around the board fence' and his legs 'sticking out in the alley,' that Dean told plaintiff and the elder Prewitt (standing in the alley) 'to clear the alley because there was some cattle coming down through there,' but that plaintiff simply said 'that he would take care of himself' and did nothing, although Prewitt easily avoided the cattle by entering a pen. Irreconcilably contrary and diametrically opposed was plaintiff's evidence that he was standing in the alley, that no one preceded the cattle, and that he had no warning of their approach until the elder Prewitt called 'Look out' at which time the cattle were so close that plaintiff was unable to escape. Since the jurors, in the exercise of their prerogative so to do, accepted plaintiff's story, we have no right to do otherwise on appeal. Colley v. Cox, Mo.App., 266 S.W.2d 778, 787(21); Denney v. Spot Martin, Inc., supra, 328 S.W.2d loc. cit. 406(11); Gould v. M. F. A. Mutual Ins. Co., Mo.App., 331 S.W.2d 663, 670-671.

Defendants' argument that plaintiff did not make a submissible case runs along the line that plaintiff was not 'a business invitee' but was 'a bare licensee' in the alley, that 'the alleged dangerous condition thereof was open, obvious and apparent to him,' and that, therefore, defendants had no legal responsibility for plaintiff's injury, because the basis of liability (even to an invitee) is the landowner's superior knowledge of an unreasonable risk of harm of which the invitee, in the...

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