Barnum v. Terpenning

• Decision Date: 28 June 1889
• Citation: 42 N.W. 967,75 Mich. 557
• Court: Michigan Supreme Court
• Parties: BARNUM v. TERPENNING ET AL.

42 N.W. 967

75 Mich. 557

BARNUM v. TERPENNING ET AL.

Supreme Court of Michigan

June 28, 1889

Error to circuit court, Huron county; BEACH, Judge.

MORSE J.

The plaintiff recovered a judgment for $400 in the circuit court for the county of Huron in an action on the case for injuries inflicted by a bull belonging to the defendants. The negligence alleged in the declaration was in substance that the bull was "wild and vicious, and it was unsafe and improper to drive or permit the said bull to go through any public highway, of all which the defendants had notice," yet the said defendants wrongfully and negligently drove the said bull through a public highway etc. The record shows that the bull was being driven with other cattle along a public highway. The animal's head was tied to one foot. The plaintiff was standing on a bridge that spanned a small stream running through the village of Ubly. She was leaning on the railing talking to her son, who was filling a tank-wagon in the stream. As the bull came along where she was he turned and tossed her over the railing into the stream. She fell upon a cedar stump or root, breaking an arm and a leg.

The defendants claim that the circuit judge should have taken the case from the jury for the reasons- First, that the bull was not shown to be vicious; second, the defendants were not notified of any wild or vicious propensities in the animal, if any there were third, that the injury was accidental, and caused wholly by the plaintiff's negligence. The case was properly submitted to the jury on the question of the plaintiff's negligence, and the injury cannot be said to have been accidental. It may be from the testimony that the plaintiff might have got off from the bridge, and thereby saved herself, if she had tried to do so when she first saw the cattle coming, and it is probable that most women would have done so, but no gross negligence on her part was shown. The injury was not occasioned by any willfulness of the plaintiff in provoking the bull, or going near him, or putting herself in his way, with knowledge of his wildness or viciousness. If the bull had not turned out of his course to assault her, she would not have been injured. See Brooks v. Taylor, 63 Mich. 208, 31 N.W. 837.

The court instructed the jury that, before she could recover, the plaintiff must show that she was not guilty of gross negligence or recklessness, which he defined as being conduct on the occasion "not wanting in reasonable care and prudence in view of all the circumstances and surroundings of the injury." This was...