Carr v. Threlkeld

• Court: Missouri Court of Appeals
• Writing for the Court: Smith
• Citation: Carr v. Threlkeld, 31 S.W.2d 592 (Mo. App. 1930)
• Decision Date: 25 September 1930
• Docket Number: No. 4770.,4770.
• Parties: CARR v. THRELKELD.

31 S.W.2d 592

CARR v. THRELKELD.

No. 4770.

Springfield Court of Appeals. Missouri.

September 25, 1930.

Rehearing Denied October 21, 1930.

Appeal from Circuit Court, Howell County; Will H. D. Green, Judge.

"Not to be officially published."

Suit by Leo Carr against Ed. Threlkeld, in which defendant filed a counterclaim. Judgment for defendant, plaintiff's motion for new trial was overruled, and plaintiff appeals.

Reversed and remanded.

Barton & Moberly, of Houston, for appellant.

H. D. Green, of West Plains, for respondent.

SMITH, J.

This suit was instituted in the circuit court of Howell county returnable to the June, 1929, term.

The petition alleged that on the ____ day of March, 1929, the plaintiff was driving his automobile in a careful and prudent manner and on the right-hand side of the highway in a northwesterly direction along state and federal highway No. 63, in Howell township, in Howell county, about 8 o'clock in the nighttime; that said Howell township had previously adopted the law restraining domestic animals from running at large under the provisions of chapter 27, article 5, of the Revised Statutes of Missouri 1919, and that said law was then and there in full force and effect; that the defendant carelessly, negligently, and unlawfully permitted three head of horses to escape from his premises and run at large in said township, knowing that said horses were likely to stray upon said highway; that about 8 o'clock in the nighttime, while the plaintiff was driving upon said highway, he found one of the defendant's horses on or near a culvert on said highway near Brandsville, and while trying to avoid striking said horse with his automobile, said horse having become frightened, two of defendant's horses suddenly came up over a steep embankment on the right side of said highway directly in front of plaintiff's automobile running into and upon and against plaintiff's automobile, damaging the same, by bursting the radiator and shell, by breaking the hood, one light, two front fenders, crossbeams on fenders, windshield, fan distributor, running board, and one rear fender, all to the amount of $350, which it cost to have said automobile repaired; that plaintiff used said automobile for business purposes, and that he was compelled to send said automobile to Springfield for repair, and that he was deprived of the use thereof for thirty days, and that the reasonable value of the use of said car was $3 per day, making a total of $90 that he was damaged by being deprived of the use thereof, and he prayed judgment in the sum of $350 for repairs to said automobile and for $90 for the loss of the use thereof, and his costs.

The answer alleged that plaintiff killed the horses belonging to defendant by striking them with his automobile, and stated that said collision was caused by reason and as direct result of the plaintiff's operating his automobile in a careless and reckless manner and in failing to operate his automobile with the highest degree of care.

For his counterclaim the defendant stated that on the ____ day of March, 1929, at nighttime, his three horses, through no fault of his and without his knowledge, had broken out of their inclosure and were on highway No. 63, near Brandsville, and that plaintiff, while operating his automobile at a high, dangerous, and excessive rate of speed of about seventy-five miles per hour, and while under the influence of intoxicating liquor, carelessly and negligently ran into and killed two of the horses belonging to the defendant and injured another to such an extent that it had to be killed. The answer stated that the plaintiff saw or could have seen by the exercise of the highest degree of care the horses in time to have prevented the collision by stopping the automobile or reducing the speed, which he failed to do. Defendant prayed judgment on his counterclaim for $175, with costs.

The reply was a general denial of the new matter set up in defendant's answer.

On June 7, 1929, a trial was had resulting in a verdict, in favor of the defendant on plaintiff's claim for damages, and a verdict of $100 in favor of defendant on his counterclaim. Judgment was entered accordingly.

Motion for new trial was filed and by the court overruled, and proper steps were taken for an appeal to this court.

There were several things fully established, as shown by this record, viz., highway 63 is a publicly used highway; the plaintiff had a legal right to travel thereon; he was traveling on the right-hand side of said highway; he first collided with one of the defendant's horses which was injured, but not killed; the other two came on the highway immediately in front of the automobile, one was killed outright and the other so badly injured that it had to be killed; that the provisions of the stock law were in effect at that time and place; that the three horses were without their inclosure and were unlawfully upon the highway at the time they were struck; and that the plaintiff's automobile was damaged by the collision. There was evidence that the plaintiff was driving carefully and slowly at the time the horses came suddenly upon the highway immediately in front of him, and evidence that he was sober. Several witnesses testified to these facts besides the plaintiff.

One witness testified that the plaintiff was driving about sixty miles per hour when he passed him on a straight road a little more than a mile away from the place of the collision, but there were curves in the road between him and the place of the collision where he could not travel at that speed. Another said the plaintiff told him he was going pretty fast when he struck the horses. One or two witnesses said they could smell whisky or brew on his breath. There was evidence that a bottle containing whisky was found next morning near the place of the collision. Testimony was offered as to the distance the car traveled after it struck the first horse; the testimony varied as to this distance.

The plaintiff requested the court to instruct the jury that, if they found from all the facts and circumstances in evidence in the case that the defendant's horses were on the highway in question, that is prima facie evidence of the negligence of the defendant. This instruction was refused. The court giving his reason for refusal by writing thereon: "Refused as being a matter for the court and not instruction to the jury. Other instruction given covers the point." The plaintiff insists the refusal to give this instruction was prejudicial error, and relies on the case of Moss v. Bonne Terre Farming & Cattle Co., 222 Mo. App. 808, 10 S.W.(2d) 338, 340. We find the Moss Case is very similar to the case under consideration, and, in discussing the question of negligence, the court, in passing on the section of the statute relating to animals running at large, used this language, which we think in point here:

"While reference is made in the petition and in the instructions to negligence yet the case is bottomed upon section 4275, Revised Statutes Missouri 1919, which provides that animals (mules) should be securely kept enclosed, and if `found running at large, outside the enclosure of the owner,' it shall be lawful for any person to take them up, and it is the duty of the constable of the township to do so, and thereupon the owner shall be liable for the cost of impounding such animal. And it is then provided that the owner shall be liable to pay all the expenses and to `pay all persons damaged by * * * such animals running at large.' He shall pay the actual damages sustained by any one growing out of the animals being at large, and if the owner shall refuse to pay such damages, same may be recovered in court.

"Now, observably, this statute does not expressly declare a defense that the animals broke out through no fault of the owner. We think it may safely be ruled that the mere finding of the stock at large is prima facie evidence of a violation of the Stock Law. If it be correct that in this case the question of negligence was in issue — and we can say that certainly ...