Cooper v. Eberly, 46503

• Decision Date: 07 April 1973
• Docket Number: No. 46503,46503
• Parties: Gary J. COOPER and Paul D. Cooper, By and Through their father, natural guardian and friend, Perry Cooper, and Perry Cooper, Individually, Appellees, v. Merl M. EBERLY, d/b/a Merl Eberly Recreation Farms, Appellant.
• Court: Kansas Supreme Court

Page 943

508 P.2d 943

211 Kan. 657

Gary J. COOPER and Paul D. Cooper, By and Through their father, natural guardian and friend, Perry Cooper, and Perry Cooper, Individually, Appellees, v. Merl M. EBERLY, d/b/a Merl Eberly Recreation Farms, Appellant.

No. 46503.

Supreme Court of Kansas.

April 7, 1973.

Syllabus by the Court

1. Before one can be held responsible for his negligent act the actor's negligence must be the proximate cause of the injury sustained.

2. The rule that the causal connection between the actor's negligence and an injury is broken by the intervention of a new, independent and efficient intervening cause, so that the actor is without liability,

is subject to the qualification that if the intervening cause was foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause, notwithstanding the intervening cause.

3. If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.

4. If there is some probability of harm sufficiently serious that ordinary men would take precautions to avoid it then failure to take such care is negligence.

5. K.S.A. 47-122 makes it unlawful for animals 'to run at large'. As used in the statute 'to run at large' means the strolling, without restraint or confinement, as wandering, roving and rambling at will without restraint. Suffering or permitting an animal to go at large implies knowledge, consent, or willingness on the part of the owner, or such negligent conduct as is equivalent thereto; but does not comprehend a case where animals escape from their owner, after due precaution to secure them has been taken, and without fault or negligence on his part, and he makes immediate and suitable efforts to recover them.

6. In a negligence action where a motorist traveling on a public highway collided with the defendant's horse causing serious injury and damages to the plaintiffs, evidence of prior escapes of the defendant's horses was properly admitted for the limited purpose of establishing notice to the defendant of possible danger, thereby, on facts more particularly related in the opinion, establishing a duty on the part of the defendant to take reasonable safety precautions to prevent the future escape of his horses to guard against accidents involving users of the highway.

7. In an action by the plaintiffs to recover damages sustained after a collision with the defendant's horse on a public highway, the record is examined and it is held: (a) The evidence did not establish plaintiffs' contributory negligence as a matter of law; and (b) evidence of the nature and extent of the plaintiffs' injuries and damages support the trial court's award of damages and judgment.

Richard C. Hite, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause, and Philip Kassebaum of Kassebaum & Rees, Wichita, was with him on the brief for the appellant.

Brian G. Grace, of Weigand, Curfman, Brainerd, Harris & Kaufman, Wichita, argued the cause, and O. J. Kaufman, Wichita, was with him on the brief for the appellee.

SCHROEDER, Justice:

This is an action based on common law negligence and arose out of injuries received by the plaintiffs when an automobile driven by the plaintiff Gary Joe Cooper struck a horse belonging to the defendant on a regularly traveled highway in Sedgwick County, Kansas. The case was tried to the court, sitting without a jury, and resulted in a judgment for the plaintiffs in the sum of $56,035.03. Appeal has been duly perfected.

The issues on appeal challenge the sufficiency of the evidence to sustain the trial court's findings regarding negligence and contributory negligence; the extent of the plaintiff Gary Joe Cooper's injuries; and the admission of evidence.

On Thanksgiving Day, November 28, 1968, Gary and Paul Cooper were returning to Wichita after spending Thanksgiving Day in St. John, Kansas, with their grandparents. On the return trip to Wichita, Paul Cooper was asleep and Gary Cooper stated he was driving east on the 21st Street Road at dusk with his headlights on. He came over a 'small rise' and saw 'some objects silhouetted in the road.' He did not know what they were but didn't want to hit them. He did not know how far he was from the first object at the time he came over the rise. He did not think he could have stopped in time to avoid striking the first object in the roadway at the time he first saw it. Furthermore, he did not know how fast he was driving at the time.

In order to avoid hitting the first object Gary Cooper swerved to the right so that part of his car was off the roadway. He drove along the shoulder of the roadway for some distance. The ride was bumpy so he accelerated in order to control his car and get it back on the road. At no time while he was driving along the shoulder of the roadway did he apply his brakes or make any effort do so.

As he was driving along the shoulder of the roadway, Gary Cooper passed the first object on the highway. He then pulled back onto the roadway and observed another object in his path. That object turned out to be the horse with which he collided. He did not know how far the horse was from his car when he first saw it. He testified that he could not have stopped in time to avoid striking the horse after he first saw it. He applied his brakes, or at least made a move to apply his brakes, only at the last second before colliding with the horse.

The accident took place near the home of Merl M. Eberly (defendant-appellant), whose farm is located on the 21st Street Road west of the city of Wichita. Merl Eberly owns 85 acres in the north half of the section in which he resides and leases the balance of the north half of the section. He also leases an irregularly shaped 35-acre tract in the south half of the section. That 35-acre tract lies generally in the northeast corner of the southwest quarter of the section. The particular tract is referred to throughout the trial as the 'south 35-acre tract.' This is the tract where Eberly's horses were pastured on November 28, 1968, the day of the accident.

Merl Eberly is 58 years of age and was doing business as Merl Eberly Recreation Farms on the day the accident took place. For this recreational business he utilized 70 acres of the land heretofore described. The Eberly's recreational activities commenced in 1954 and since that time they have gradually increased the number of horses on the premises. At the time of the accident they owned approximately 10 horses. Activities provided in connection with their recreational business included hayrack rides, horseback rides, picnicking, swimming, swimming lessons, day camp operations, and overnight camping. Charges were made for the use of their facilities. The defendant employed a number of persons to assist in his business and, among other things, to act as guides for people on trail rides. The horseback riding, riding lessons, trail rides and hayrack rides were operated throughout the south 35-acre tract.

After the accident it was found that a gate was open in the fence surrounding the south 35-acre tract where the horses had been confined. There was no evidence which would tend to prove how or why the gate happened to be open.

There were three gates located in the south 35-acre tract, numbered 3, 6 and 7. In 1963 gate No. 7 was wired up and closed off during a major repair and rewiring of the fence. Prior to being wired up, gate No. 7 had been secured with a padlock. Gate Nos. 1, 3 and 6 on the Eberly premises were the only gates which led to unfenced fields or pastures, and then to highways in the area. Gate Nos. 1 and 3 were secured with padlocks, but gate No. 6 was secured only with a wire loop. Gate No. 6 was located within a few feet of trails frequently used for horseback riding and hayrack rides. Gate No. 6 is near the center of the section in which the land leased by the defendant is located and it is not adjacent to any roadway. The cultivated land bordering the south 35-acre tract is not fenced. There is no evidence that the horse involved in the collision here in question could have escaped from the south 35-acre tract at any place other than through gate No. 6, which was found lying wide open after the accident. It appeared as if someone had opened the gate wide and left it open. The gate had not fallen down in place as if it had become unlatched.

The defendant had no regular schedule or practice of checking the gates and fences. He testified that he or one of his employees would check when riding through the area with customers to see that the gates were all closed and that the fence was in good shape. Six days before the accident, there were two hayrack riding groups using the defendant's facilities. One group was made up of 25 people and the other between 30 and 50 people. Five days before the accident there were two separate reservations of six people each for horseback riding at the defendant's facilities, and later that same day two separate groups of 30 people each for hayrack rides. Thus, a total of between 127 and 147, business customers of the defendant were on the property involved within a few days before the accident. No check was made of the fences and gates on the defendant's property from the date of the last business activity until the day of the accident. But Mr. Eberly testified he personally checked gate No. 6 when the last hayrack ride went by the gate in the south 35-acre tract on the weekend preceding Thanksgiving Day, and the gate was closed.

At one time the south 35-acre tract was posted with signs in the area of gate No. 6 warning against trespassing and hunting, but there is no evidence that these signs were present on the day of the accident. Testimony indicated...