Buckner v. Stockyards Horse & Mule Co.

• Decision Date: 31 May 1909
• Citation: 120 S.W. 766,221 Mo. 700
• Parties: BUCKNER v. STOCKYARDS HORSE & MULE CO.
• Court: Missouri Supreme Court

120 S.W. 766

221 Mo. 700

BUCKNER v. STOCKYARDS HORSE & MULE CO.

Supreme Court of Missouri, Division No. 1.

May 31, 1909.

1. NEGLIGENCE (§ 65) — "CONTRIBUTORY NEGLIGENCE" — DEFINITION.

Contributory negligence is the want of such care and prudence as an ordinarily careful and

prudent person would have used under the same circumstances.

2. MASTER AND SERVANT (§ 101) — SAFE PLACE TO WORK AND APPLIANCES — DUTY OF MASTER.

It is the duty of a master to keep the place in which, and the appliances with which, a servant works in a reasonably safe condition, and failure to do so is negligence.

3. MASTER AND SERVANT (§ 222) — INJURY TO SERVANT — OBVIOUS DANGERS.

Where defendant master with knowledge of the unsafe condition of the premises directed plaintiff, a servant, to do certain work, plaintiff, though also having knowledge of such unsafe condition, was not precluded from recovering for injuries sustained thereby, unless the danger was so patent that a reasonably prudent person would not have undertaken to obey defendant's instructions.

4. MASTER AND SERVANT (§ 288) — INJURY TO SERVANT — OBVIOUS DANGER — QUESTIONS FOR JURY.

In an action for injuries to a servant, whether the danger of working on unsafe premises was so patent that a reasonably prudent person would not have undertaken to obey defendant's directions to work there held, under the evidence for the jury.

5. MASTER AND SERVANT (§ 221) — INJURIES TO SERVANT — DANGEROUS PREMISES.

Where there is a knowledge of dangerous conditions on the part of both master and servant, and the master promises to remedy the condition but fails to do so, the servant can recover for an injury caused thereby within such a period as it would be reasonable to allow the master to perform his promise, and for any injury suffered in any period which would not preclude all reasonable expectations that the promise might be kept.

6. NEGLIGENCE (§ 58) — PERSONAL INJURIES — LIABILITY — PROXIMATE CAUSE.

The liability of one charged with negligence does not depend on the question whether, in the exercise of reasonable prudence, he could or ought to have foreseen the very injury complained of, but he may be held liable for anything which after the injury is complete appears to have been the natural and probable consequence of his act or omission.

7. NEGLIGENCE (§ 61) — PERSONAL INJURIES — CONCURRENT CAUSES.

Where defendant's negligence, but for which the accident would not have occurred, combined with some other cause or causes, has occasioned an injury, defendant is liable unless such other cause or causes were under the control of plaintiff, or were the outgrowth of his own conduct.

8. MASTER AND SERVANT (§ 291) — INJURIES TO SERVANT — INSTRUCTIONS.

In an action for injuries to a servant through being struck by a defective gate which was run against by horses which plaintiff was endeavoring to pen, the instructions held to fairly declare the law under the facts of the case.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by A. H. Buckner against the Stockyards Horse & Mule Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Harkless & Histed, for appellant. Charles R. Pence, for respondent.

GRAVES, J.

This is an action for personal injuries. Plaintiff was an employé 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, Mo., known by it as barn "C," which barn extended from Genesee street on the east to Bell street on the west. Through said barn from east to west was an alley 12 feet wide, and upon either side thereof were pens in which horses and mules were kept, fed, and watered. This alleyway had a board floor, and these pens opened in such alleyway by means of gates; which gates were in length about the width of said alleyway, and swung out into said alleyway, so that, when the gate of the pen was opened, it might be used, if desired, to close the alleyway. On the south side of the alley was what were known as pens No. 1, No. 2, and No. 3; No. 1 being at the east end of this alleyway and going west, followed by No. 2 and No. 3 in order. The gate to said pen No. 2 could be opened so that it would close the passageway of said alleyway 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 alleyway, and the first pen to the west of No. 2 as above indicated. To do so the east end of the alleyway 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 alleyway, would have to be open and the horses driven out of pen No. 2 through said alleyway 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 some time 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...