Buckner v. Stock Yards Horse & Mule Company

• Citation: 120 S.W. 766,221 Mo. 700
• Parties: A. H. BUCKNER v. STOCK YARDS HORSE & MULE COMPANY, Appellant
• Decision Date: 31 May 1909
• Court: United States State Supreme Court of Missouri

120 S.W. 766

221 Mo. 700

A. H. BUCKNER v. STOCK YARDS HORSE & MULE COMPANY, Appellant

Supreme Court of Missouri, First Division

May 31, 1909

July 1909

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Affirmed.

Harkless & Histed for appellant.

(1) Under the evidence plaintiff was not entitled to recover. The gate and floor was a simple, ordinary appliance, without any complication, plain to be seen and observed by any man. It was being used constantly and might be out of line at any time. Plaintiff knew its condition and was the man to know it. He had control of it. It was his duty to report it if it needed repairing and he was the man to know when it needed repairing. He knew precisely what he was doing and left the gate in the condition in which it was. There could be no liability on the defendant's part from plaintiff's use of such simple appliances. No such accident had ever occurred before. Plaintiff was the sole judge of where he should leave the gate and how he should leave it and selected his own manner of conducting his affairs, and in no event could defendants have anticipated that he would leave the gate in such condition, or if he did, that horses would get in back of it and push it around against him. Trigg v Land Co., 187 Mo. 237; Ferber v. Bolt Co., 185 Mo. 309. (2) Defendant was guilty of no negligence. The floor or gates are claimed by plaintiff to have been higher on that morning than at any other time. Defendant knew nothing about it. It was plaintiff's sole duty to look after this condition and to see that it was repaired if he thought it ought to be done. (3) But the alleged defective condition of the gate was not the cause of the plaintiff's injury. The proximate cause of his injury was the intervening, unexpected and unheard of action of the wild horses in running in behind it. (4) Where the servant in command of the work is charged with the duty of looking after the repairs, the master cannot be guilty of negligence because that has not been done which it was the duty of the servant himself to do. Hollerin v Iron Foundry Co., 133 Mo. 470; Kleine v. Friends Company, 91 Mo.App. 102.

Charles R. Pence for respondent.

(1) Plaintiff knew of the conditions but reported them to his foreman time and again, who promised to have them repaired. It was not plaintiff's duty to repair or to have the repairs made. Defendant through its manager was fully informed of the condition which had existed for several months before the injury. The evidence proving these facts was not even disputed. The manager did not deny, but testified that he did not remember, of plaintiff reporting the condition of the gates and alley. (2) The defective condition of the gate and alley was the proximate cause of plaintiff's injury. The crowding and pushing of the horses would have been harmless had it not been for the defective gate which could not be put back, but projected into the alley and was an obstruction in the alley, in the way of the horses, behind and against which they ran, throwing the gate around and upon plaintiff. It is not essential that a defendant could have anticipated the very injury complained of. It is enough that he has been guilty of negligence, and that such negligence is the proximate cause of the injury. Miller v. Railroad, 90 Mo. 394; Graney v. Railroad, 140 Mo. 98; Hoepper v. Southern Hotel Co., 142 Mo. 388; Harrison v. Electric Light Co., 195 Mo. 629; Dean v. Railroad, 199 Mo. 411. (3) If the gate and alley had not been defective, so as to make the gate an obstruction in the alley, the action of the horses would not have caused the injury. We have the case, then, of damage caused by the concurring force of defendant's negligence and some other force for which he is not responsible. In such cases the intervening agency does not excuse defendant. Bassett v. St. Joseph, 53 Mo. 300; Vogelsang v. St. Louis, 139 Mo. 136; Lore v. Mfg. Co., 160 Mo. 625; Brash v. St. Louis, 161 Mo. 438; Harrison v. Electric Light Co., 195 Mo. 622.

OPINION

GRAVES, J.

This is an action for personal injuries. Plaintiff was an employee of defendant, which is a Missouri corporation engaged in the business of a commission merchant, buying and selling horses and mules. In its said business the defendant was using a certain barn in Kansas City, Missouri, known by it as barn "C," which barn extended from Genessee street on the east to Bell street on the west. Through said barn from east to west was an alley twelve feet wide and upon either side thereof were pens in which horses and mules were kept, fed and watered. This alley way had a board floor, and these pens opened in such alley way by means of gates, which gates were in length about the width of said alley way, and swung out into said alley way, so that when the gate of the pen was opened it might be used, if desired, to close the alley way. On the south side of the alley were what were known as pens No. 1, No. 2 and No. 3, No. 1 being at the east end of this alley way and going west followed No. 2 and No. 3 in order. The gate to said pen No. 2 could be opened so that it would close the passage way of said alley way so as to prevent the horses coming out of said pen from going eastward to the street on the east of the barn. At the time of the accident, plaintiff was removing some horses from pen No. 2 to pen No. 3, the said pen No. 3 being on the south side of the alley way, and the first pen to the west of No. 2 as above indicated. To do so the east end of the alley way would be closed by the opening of the gate to pen No. 2, and of course the gate to pen No. 3, which swung back east in said alley way, would have to be open and the horses driven out of pen No. 2 through said alley way to pen No. 3. The negligence charged in the petition is in this language:

"That it was the duty of defendant to keep said gates and alley in a reasonably safe condition for the purposes aforesaid, but plaintiff states that said defendant negligently and carelessly failed to perform said duty in this, to-wit: That the floor of said alley was at the time of said injury and for a long time prior thereto had been in a defective, dilapidated and unsafe condition, the boards thereof were broken and rotten and the surface was uneven and portions thereof about the gate into which said horses were to be driven were raised up so that said gate could not be fully opened and swung back against said pens, but when opened as far as possible projected out into said alley and left a space between said gate and pens into which the said horses might rush when being driven from one pen to another.

"The plaintiff in transferring said horses opened said gate as far as the same would go; and while in the act of taking a position beyond the said gate to turn the horses therein, the said horses rushed into the space between the said gates and said pens and threw said gate with great force and violence around and against the plaintiff, knocking him down and permanently injuring him."

Damages were alleged in the sum of $ 10,845, which included $ 325 for medical attendance and $ 520 for loss of earnings. There was a second count but this was dismissed and need not be noticed further.

Answer was a general denial, plea of contributory negligence and a plea of assumption of risk. Reply, general denial.

Plaintiff had verdict and judgment for $ 5,000, from which judgment defendant, after an unsuccessful motion for new trial, has appealed.

The evidence in the case discloses about this state of facts. On June 1st and for a long time prior thereto defendant had the plaintiff in its employ. Defendant was continuously receiving horses and mules for sale, which came from all sections of the country. Plaintiff was what is sometimes denominated a "straw boss" and under the evidence he was strictly such, if in fact he reached that altitude in the scale. It appears that he did see that the men in defendant's employ around their said barn "C" worked, and he worked with them. At times he was alone there and at times he had other men with him. One J. C. Endicott was the foreman for defendant and visited this and other barns belonging to defendant practically every day. He said the duties of the plaintiff were to water, feed and curry the horses, place them around in the barn "and kind of keep the men that I (Endicott) had under him working down there busy." This witness also said that if anything got out of shape plaintiff was expected to fix it up if he could, and if not, to report it to him.

Mr. Wolcott, vice-president of defendant, said plaintiff was not expected to make repairs; that his business was to take care of the horses; that Endicott was their general foreman and hired and discharged the men, and that Endicott had the right to give orders to Buckner, the plaintiff; that he knew of the condition of the gate only in a general way; that looking after the condition of the gate was supposed to be done by the foreman. Endicott was made a witness by plaintiff and Wolcott by the defendant. Other evidence tended to show that plaintiff had nothing to do with repairs, but that he was expected to report such things to the foreman, and that there was a gang of carpenters at the stock yards who made repairs. Such is the testimony of plaintiff relative to defendant and the barn in question.

It was shown that this alley way floor was made of planks running cross-wise, which planks were two or three inches thick and twelve inches wide. That they had become badly rotted and worn near the center of the alley way, with holes and broken places therein. That they had been in such condition for a long time prior to said June 1, 1901, the date of the accident to plaintiff; that by reason of such condition the ends...