Breece v. Ragan
| Decision Date | 01 April 1940 |
| Parties | FLORENCE BREECE, APPELLANT, v. E. OLIVER RAGAN, RESPONDENT |
| Court | Kansas Court of Appeals |
Appeal from Miller Circuit Court.--Hon. Nike G. Sevier, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Hon. W S. Stillwell and Leslie B. Hutchison for respondent.
(1) The court committed no error in refusing appellants' instruction No. 4. The cases cited by appellant on this point do not apply to the facts in this case. The evidence shows that the cause of injury to the cattle in question was caused by the sloping condition of the ground at that part of the barn where cattle were assembled, which condition was unknown to respondent; and respondent's plea of contributory negligence is based largely on the fact that the appellant through her agent, directed and assisted in assembling the cattle at that point knowing the condition while the evidence shows that Ragan was not acquainted with that condition. These facts were set up in the plea of contributory negligence and were sufficient to support the evidence introduced thereunder. A careful examination of all the authorities cited by the appellant, we think, will show that the plea of contributory negligence was not interposed in them, or, if interposed, was not sufficient in form and substance. Appellant cites Ward v. City of Portageville, 106 S.W.2d 497, as supporting her contention that there was no contributory negligence. The court said in this opinion on pages 523 and 524: "When we consider the facts in this case which shows the respondent knew of the condition of the sidewalk, that it was broad daylight at the time, and that the condition of the sidewalk was not a hidden defect, we must conclude that under all the facts and circumstances in the case, that the respondent's contributory negligence was a question of fact to be determined by the jury." In the case at bar Breece had lived on the farm practically all his life, knew the exact condition of the barn and directed that the cattle be put therein. Appellant cites Ballard v. K. C. Power & Light Co., 298 S.W. 131, as supporting her contention there was no contributory negligence in the case at bar, but a careful reading of this citation supports the contention of the respondent and not the appellant. If the cattle were under the control of witness Breece and if they were put in the barn at his direction, and he knew of the true condition of the barn, then the ruling in this case, where these facts are applied, would be against the appellant. (2) The court did not commit an error in giving of Instructions (d), (e) and (f) on the part of respondent. These instructions must be taken and considered as a whole, and it will be noted that Instruction (e) requires the jury to find the facts set up in respondent's amended answer alleging contributory negligence on the part of the appellant. Considering the instructions as a whole the jury is not given a roving commission, but are required to find the facts that are set up as acts of contributory negligence. The Instructions (d) and (f) complained of were approved by the St. Louis Court of Appeals in an able opinion written by Judge BLAND, Presiding Judge of that court, in the case of Brewer v. St. Louis Transit Co., 105 Mo.App. 503, l. c. 511 and 512. This case has never been criticised or overruled by any appellate court in this State. (3) There can be no recovery if the plaintiff was guilty of any negligence which contributed directly to the cause of injury. Karle v. Railway, 55 Mo. 476. (4) When the negligence of defendant and plaintiff combined to cause the injury there can be no recovery. Hafner v. Railway, 94 S.W. 391; Porter v. Railway, 97 S.W. 880; Burton v. Railway, 176 Mo.App. 14. (5) Plaintiff's negligence bans recovery under theory of primary negligence. Chawkley v Railway, 297 S.W. 20. (6) If negligence of plaintiff contributed in any degree, no recovery can be had. 29 Cyc. 511; Halverson v. St. L. Ry. Co., 157 Mo. 216, l. c. 226; 50 L.R.A. 850. (7) No matter how slight may be the negligence of the person injured, provided it contributed to the injury. The law will not attempt to measure the degree. Newcomb v. N. Y. Central Ry. Co., 169 Mo. 409, l. c. 425, 429; 29 Cyc. 511. (8) When danger is known a person is bound to use ordinary care to avoid it and recovery cannot be had when the injured person, by the exercise of ordinary care could have avoided the injury even though defendant was negligent. 29 Cyc. 515. (9) Knowledge of danger in all cases is an important factor for the consideration of the jury, and in many the character of the knowledge and the nature of the danger may be such as to constitute contributory negligence. Swanson v. Sedalia, 89 Mo.App. 121; Harriman v. K. C. Star Co., 81 Mo.App. 124; Stevens v. Walpole, 76 Mo.App. 213; O'Donnell v. Patton, 117 Mo. 13; Matthews v. St. L. Grain Elev. Co., 59 Mo. 474. (10) One cannot recover for injuries sustained by reason of negligence of another when he himself has been guilty of negligence. Pim v. St. L. Transit Co., 108 Mo.App. 713. (11) Defendant's plea of contributory negligence is all that the law requires. Brock v. St. L. Transit Co., 107 Mo.App. 109, l. c. 112; Hedrick v. Mo. P. Ry. Co., 195 Mo. 104, l. c. 110; Simonton v. Transit Co., 207 Mo. 718, l. c. 720. (12) Defendant's Instructions (c) and (e) properly declare the law on contributory negligence. Gale v. Mo. Car & Foundry Co., 177 Mo. 427, l. c. 454; Kaminski v. Tudor Iron Works, 167 Mo. 462, l. c. 467, 468; Rice v. Wabash Ry. Co., 92 Mo.App. 35, l. c. 40; Hall v. Huber, 61 Mo.App. 384, l. c. 386; Brewer v. St. L. Transit Co., 105 Mo.App. 503. (13) Instruction (f) properly declares the law. Hornstein v. United Ry. Co., 97 Mo.App. 271, l. c. 278; Schaabs v. Woodbum Servan Heel Co., 56 Mo. 173, l. c. 174; Brewer v. St. L. Transit Co., 105 Mo.App. 503. (14) Instruction (g) is good. Groom v. Kavanaugh, 96 Mo.App. 361, l. c. 365. (15) The negligence charged to plaintiff in directing that the cattle be put in barn where ground was sloping for the purpose of vaccination was the sole proximate cause of the injury. 45 C. J. 943, sec. 502. (16) One who fails to take precautions which he might have taken to protect his property from injury resulting from the negligence of another, the danger from which he was fully aware, is guilty of contributory negligence. A man has no right to invite peril, or to run into danger. 45 C. J. 945, sec. 505. (17) Even though the verdict in this case was against the weight of the evidence, and respondent does not concede that to be true, the appellate court would not have the right to disturb the verdict on that ground. That duty rests on the trial court. State v. Hoffman, 132 S.W.2d 27, l. c. 28.
Claud D. Hall, Wm. H. Allen and Charles D. Snodgrass for appellant.
(1) Plaintiff's refused instruction No. 4 (Abs. 58) withdrawing the issue of alleged contributory negligence on the part of plaintiff, by reason of her father assisting in assembling the cattle, should have been given. (a) There was no proper plea of contributory negligence and no evidence upon which to base it. (b) For any negligence of Mr. Breece in assembling the cattle (but we claim there was none) did not enter into and form the direct, producing and efficient cause of the death of the cattle. Alyea v. Junge Baking Co., 207 Mo.App. 687, 230 S.W. 341; Hiers v. Letts Melick Gro. Co. (Mo.), 296 S.W. 408; Bobos v. Krey Pkg. Co., 317 Mo. 108; Rooney v. St. Louis-S. F. Ry. Co. (Mo. App.), 286 S.W. 153; Conrad v. Hamra (Mo. App.), 253 S.W. 808, 220 Mo.App. 273; Cox v. St. Louis S. F. Ry. Co. (Mo. App.), 9 S.W.2d 96; Nordman v. Jahn Bakery Co. (Mo.), 298 S.W. 1037. (c) The work of assembling the cattle by Mr. Breece was too remote from the negligent acts of the defendant, Ragan, which caused the cattle to stampede, pile up and be killed, and the acts of Mr. Breece could not bar recovery. Failure to protect one's property from the negligence of another is not contributory negligence. Stone v. Hunt, 114 Mo. 66. (d) There was no evidence that Mr. Breece was agent of his daughter, Florence Breece, in connection with the assembling and vaccinating of the cattle, as he had no part in the physical vaccination of the cattle. The defendant Ragan, being in sole charge thereof, no act of Mr. Breece would bar recovery. (2) Defendant's Instruction No. (d) was erroneous: (a) Because it submitted to the jury the issue of contributory negligence in general, and not the specific acts of negligence alleged as to G. W. Breece in the answer of defendant. Garvey v. Ladd (Mo. App.), 267 S.W. 727; Hensley v. Kansas City Ry. Co. (Mo. App.), 214 S.W. 287; Meredith v. Claycomb (Mo. App.), 216 S.W. 794; Benjamin v. Met. Street Ry. Co., 245 Mo. 598, 151 S.W. 591; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543; Schide v. Gotschick (Mo. App.), 43 S.W.2d 877; Bullmore v. Bleer (Mo. App.), 33 S.W.2d 161; Rucker v. Alton R. R. Co. (Mo.), 123 S.W.2d 24. (b) Instruction (d) was erroneous in telling the jury, in the second from last paragraph thereof, that negligence of the defendant must be the sole cause of the injury, whereas plaintiff's negligence, if any, need not be the proximate cause of the injury to defeat a recovery. It is not necessary that the defendant's negligence be the sole cause of the injury for the defendant to be liable. Brannon v. City of St. Louis, 92 Mo. 482, l. c. 486-487; Ford v. Wabash Ry., 318 Mo. 723, 300 S.W. 769; Ballard v. K. C. Power & Light Co., 221 Mo.App. 1116, 298 S.W. 131; Ward v. City of Portageville, 106 S.W.2d 497; Henry v. First Natl. Bank, 115 S.W.2d 121; Mattingly v. Broderick, 225 Mo.App. 377, 36 S.W. 2d 415; Fawkes v. Natl. Refining Co., 341 Mo. 630, 108 S.W.2d 7. (c) This instruction...
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