Carson v. Knight

• Citation: 284 S.W. 617
• Decision Date: 29 April 1926
• Docket Number: (No. 358.)
• Parties: CARSON v. KNIGHT et al.
• Court: Court of Appeals of Texas

284 S.W. 617

CARSON v. KNIGHT et al.

(No. 358.)

Court of Civil Appeals of Texas. Waco.

April 29, 1926.

Rehearing Denied May 27, 1926.

Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.

Action by S. J. Knight against Walter J. Carson and another. From a judgment for plaintiff against the named defendant, the latter appeals. Affirmed.

McCart, Curtis & McCart, of Fort Worth, for appellant.

Capps, Canty, Hanger & Short and Marvin H. Brown, all of Fort Worth, for appellees.

GALLAGHER, C. J.

This suit was instituted by S. J. Knight, one of the appellees herein, against Walter J. Carson, appellant herein, and the Fort Worth Packing Company, one of the appellees herein, to recover damages for personal injuries. Appellant was engaged in the transfer business, and, as such, delivered a truckload of calves to the packing company. Said calves were delivered from the truck to a chute at the stockyards of said company. The company provided gates fastened at one end to the chute with hinges at the top and the bottom. Said gates were intended to be tied at the other end to the sides of the truck, thus in effect extending the sides of the chute to the truck and permitting said calves to walk from the truck over a platform between said gates into the chute proper, and from there into the yards of the company. The company permitted the lower hinge on one of said gates to be and remain broken, which condition was known both to appellant and said company. At the time in question a large calf a year or over old, and weighing about 350 pounds, in the crowding of said calves in passing between said gates was, by reason of said broken hinge and the giving way of the lower corner of said gate resulting therefrom, caused to fall from said platform to the ground. As soon as said calf reached the ground, one of appellant's employés seized it by the head or neck, and attempted to hold it or throw it to the ground, which process he described in his testimony as "bulldogging." Either on account of lack of strength or lack of skill on the part of said employé, said calf escaped and ran madly up the street. Another employé pursued it on foot. It ran up a street occupied by railroad tracks. Cars were standing on each track, with a space about four feet wide between them. Appellee Knight was stooped over inspecting the running gear of a car, and just as he raised up, or immediately thereafter, said calf ran against him, knocked him down, and inflicted the injuries complained of. There was evidence tending to show that said calf was an ordinary well-conditioned calf, and also that it was wild and scary; that it became infuriated when appellant's employé attempted to "bulldog" it; and that such treatment was calculated to produce that effect. There was also testimony tending to show that such a calf when so infuriated would attack a person, and that this particular calf was wild and mad when it was recaptured about a mile from the scene of the accident, and that it still exhibited evidence of such condition the next morning. Appellant's employé testified that in pursuing said calf he was some distance behind, and that he did not hallo at it, but that other people along the route taken by it before the accident did do so, and further frightened it.

There was a trial by jury. Appellee abandoned any claim for damages against the packing company, and the court instructed the jury to return a verdict in its favor. On the issues of negligence and proximate cause the jury found, in substance: (a) That the action of appellant's employé in seizing and handling said animal immediately after it escaped was negligence; and (b) that such negligence was the proximate cause of appellee's injuries; (c) that the action of appellant's employé in pursuing said animal was negligence; and (d) that such negligence was the proximate cause of appellee's injuries; (e) that there was no intervening cause or causes independent of the acts of appellant's employés in the premises causing or contributing to cause appellee's said injuries. No other or further submission of said issues was requested by either party. The court rendered judgment in favor of appellee, and appellant presents said judgment for review.

Opinion.

The first contention on which appellant bases his claim for reversal is that the evidence fails to show any actionable negligence. He insists that the acts of his employés in seizing said calf and attempting to hold and restrain it and prevent its escape into the street and in pursuing it after it did escape were not negligence but were the reasonable and proper things to do. We may concede that as between said employés and appellant it was their duty to prevent the escape of said calf and to place it in the yards of the company. It was, however, their further duty in attempting to do so not to employ means reasonably calculated to further alarm or infuriate said calf so as to make it dangerous to members of the public using or occupying the streets. There was evidence tending to show that the means used were calculated both to greatly alarm and to infuriate said...