Cleghorn v. Thompson

• Decision Date: 06 April 1901
• Docket Number: 11,884
• Citation: 62 Kan. 727,64 P. 605
• Parties: D. CLEGHORN et al. v. JOSEPHINE THOMPSON et al
• Court: Kansas Supreme Court

64 P. 605

62 Kan. 727

D. CLEGHORN et al. v. JOSEPHINE THOMPSON et al

No. 11,884

Supreme Court of Kansas

April 6, 1901

Decided January, 1901.

Error from Rice district court; ANSEL R. CLARK, judge.

Judgment reversed.

Prigg & Williams, for plaintiffs in error.

Samuel Jones, and C. F. Foley, for defendants in error.

OPINION

CUNNINGHAM, J.:

A firm composed of M. E. Richardson and Samuel Haston was engaged in the meat business in the city of Sterling, and in connection therewith had a slaughter-house and stock-yards on a tract of land a short distance from the town. They had in their employ one D. Cleghorn, who was in charge of the slaughter-house and yards. Upon several occasions dogs had been about the place causing annoyance and trouble, and Cleghorn had been instructed to kill them if they returned. A Colt's rifle carrying a No. 32 cartridge was in use at the slaughter-house. On the east of the tract of land on which the slaughter-house was located, and about seventy to eighty rods therefrom, was a public highway running north and south which was traveled generally by people going to and coming from Sterling. To the east and northeast the land rose gradually to the road. From the slaughter-house and pens a portion of this north and south road was visible and a portion was not.

On the morning of the 31st of January, 1898, about nine o'clock, Cleghorn noticed the dogs about the yards. He procured the rifle and discharged it at the dogs, which were then about seventy-five yards to the northeast of where he was standing. The distance to the highway from the same point, and in the direction in which he shot, was between seventy and eighty rods. The land between where the dogs then were and the highway was higher than it was where they were, and so much so that it is spoken of as an embankment. It was of a sandy character. At this time one Joseph Thompson, who was the husband of one of the defendants in error and the father of the others, was passing along the north-and-south road and was then at a point east, or possibly to the southeast, of where Cleghorn stood. Whether or not he was in a position where he might have been seen by Cleghorn does not appear. The ball which was discharged by Cleghorn at the dogs was deflected at quite an angle and passing through the intervening space struck Mr. Thompson and killed him. This action was brought by these defendants in error against Cleghorn, Richardson and Haston to recover damages occasioned by the death of Thompson.

The first trial resulted in a verdict for the plaintiffs. A new trial was awarded, and upon the second and third trials the jury failed to agree. The fourth trial resulted in a judgment for the plaintiffs, and the defendants, as plaintiffs in error, bring the case to this court.

Various errors are alleged, but there confronts us, at the very outset, the question as to whether, under the circumstances of this case, plaintiffs are entitled to recover at all. They are not unless it can be stated that Cleghorn was negligent in shooting as he did. No wantonness or malus animus is charged. Seeing the dogs running up the slope, Cleghorn procured the gun and discharged it at them, against the elevation or embankment of land. To be sure the bullet was in some manner deflected and, taking another course, did the damage. One of the witnesses spoke of the ground as being frozen. To what extent was not shown, but it is hardly credible that the frozen condition of the ground was responsible for the deflection of the bullet, as it appears that the bullet was marked with a small groove which ran lengthwise. This marking would probably not have so appeared had the deflection been occasioned by contact with frozen earth. From that cause it would have presented more of a bruised appearance. It is probable that the bullet struck some small or sharp stone and was thus turned out of its course.

What constitutes actionable negligence?

"Now, a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things." (Poll. Torts, 36.)

"Where a man, proceeding in a lawful business, exercises reasonable care, the law does not make him an insurer of others against those consequences of his actions which reasonable care and foresight could not have prevented. The law justly ascribes such consequences to inevitable misfortune, or to the act of God, and leaves the harm resulting from them to be borne by him upon whom it falls. The contrary rule would obviously be against public policy, because it would impose so great a restraint upon freedom of action as materially to check human enterprise." (Thomp. Neg. 1234, 1235.)

"Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." (Ray, Neg. Imp. Dut. § 183, p. 663.)

"It is conceded by all the authorities that the standard by which to determine whether the person has been guilty of negligence is the conduct of the prudent, careful, diligent or skilful man in the particular situation." (Big. Torts, 289.)

So in the case of City of Allegheny v. Zimmerman, 95 Pa. 287, 40 Am. Rep. 649, which was a suit to recover for injuries caused by the falling of a liberty pole which had been erected in the street, it was held, following the general rule:

"One is answerable in damages for the consequences of his faults only so far as they are natural and proximate, and may therefore have been foreseen by ordinary forecast, and not for those arising from a conjunction of his own faults with circumstances of an extraordinary nature."

"Negligence is the want of proper care, caution, and diligence--such care, caution and diligence as, under the circumstances, a man of ordinary and reasonable prudence would exercise." (McCully v. Clarke Thaw, 40 Pa. 399.)

"Negligence is the failure to exercise that degree of caution which a man of ordinary intelligence would exercise under the circumstances of a particular case." (Gravelle v. Minneapolis & St. Louis Ry. Co., 3 McCrary's Cir. Ct. Rpts 352, 10 F. 711.)

See also, Lewis v. Flint & Pere Marquette Ry. Co., 54 Mich. 55, 19 N.W. 744; C. B. & Q. R. R. Co. v. Stumps, 55 Ill. 367; Sjogren v. Hall, 53 Mich. 274, 18 N.W. 812; Mitchell v. Chic. & G. T. Ry., 51 Mich. 236, 16 N.W. 388; Hoag v. Lake Shore & Michigan Southern Railroad Co., 85 Pa. 293, 27 Am. Rep. 653; Railroad Co. v. Jones, 95 U.S. 439, 24 L.Ed. 506; C. & A. R. R. Co. v. Adler, 129 Ill. 335, 21 N.E. 846; Heaven v. Pender, 11 QB 507; Atkinson and another v. The Goodrich Transportation Co., 60 Wis. 141, 18 N.W. 764; McGowan v. Chicago & Northwestern R. Co., 91 id. 147, 64 N.W. 891; Davis v. Chicago, Milwaukee & St. Paul R. Co., 93 id. 470, 67 N.W. 1132, 33 L. R. A. 654; Bouvier; Poll. Torts, 37. We might extend quotations and multiply authorities to an almost unlimited extent, but we deem...