Cox v. Moore
| Decision Date | 10 August 1965 |
| Docket Number | No. 8434,8434 |
| Citation | 394 S.W.2d 65 |
| Parties | Bob COX, Plaintiff-Respondent, v. Jess MOORE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Mann, Walter, Powell, Burkart, & Weathers, Jack A. Powell, Robert W. Schroff, Springfield, for defendant-appellant.
Lindell R. Church, Springfield, for plaintiff-respondent.
Defendant appeals from a judgment for damages in the sum of $6,710. The suit is the outgrowth of a collision between plaintiff's 1955 Oldsmobile and (allegedly) defendant's Guernsey steer, in which all concerned came off second best.
The incident occurred after dark in a rural or semi-rural area on paved Highway 266, which runs in a generally east-west direction. Defendant's dwelling house sits on the south side of the road. A driveway runs from the highway down past the west side of the house and, apparently, to defendant's barn lot. Plaintiff had spent the afternoon inventorying his 'Hillbilly Haven,' which is situate some twelve miles west of Springfield. Having finished with that, he drove easterly to 'Ed's' place, where he says he drank (only) 'one beer,' and then, around 7:30 P.M., drove east on the highway toward Springfield. He testified that he was driving fifty-sixty miles per hour; that as he came over a little knoll in front of defendant's home there were five head of cattle strung out across the road, heading south. A black cow was in front and in the ditch on the south side, the four others following 'straight behind.' He cut his car to the left and applied his brakes but struck hindermost a Guernsey steer weighing, he said, between six and seven hundred pounds, in the right rear flank. This threw the steer around to the right and threw plaintiff against his left door, thus causing his alleged injuries. He pulled into defendant's driveway. The steer and the other cattle did not remain in the vicinity but went off in the dark. There were no other witnesses to the occurrence. Defendant's son came out of the house; plaintiff told him, 'I hit one of your cattle, buddy.' The son said 'Where'd they go,' and he said 'Out toward your barn.' Plaintiff drove on up the road, called the State Highway Patrol, and drove back to defendant's place. The patrolman came; by that time the defendant had arrived and, according to plaintiff, defendant said, Thereafter he went on to Springfield. Defendant does not agree as to this conversation; but, since plaintiff has the verdict, we must accept that version which is most favorable to him.
Defendant's son testified he was in the house and heard a noise that sounded like a blowout; a man pulled into the driveway, and he thought the man was fixing a flat. He went out and saw plaintiff. Plaintiff said he had hit a calf (but did not mention any cows); so the boy went up toward the end of the barn to look for a calf, or anything out on the lot, but found none; and found no gates open. He went back to the house to phone his father; and, while he was calling, plaintiff left. He thought plaintiff was drunk. He said they had a new seven-foot fence; that the cattle down in the pasture would have had to go through three gates to get out on the road.
Defendant testified his place was wellfenced and that his seven milk cows were in a pasture beyond and south of the barn lot and such cattle would have had to go through two gates in order to get up to the barn lot. In the morning they were still in the pasture. He also had three small calves locked in the barn, and two larger ones, a Guernsey steer and a Holstein bull, in the barn lot, all of which were still in place in the morning. He did ascertain that the top of the end post at the gate into the driveway 'was pushed over'; later he cemented that post in. The fastener at the top of the gate was still hooked but the bottom of the gate was pushed open a little bit. He said that it might have been possible for a calf to put his head through, 'spring it on,' and squeeze through, but that it would have been impossible for a cow to do so. The next day defendant found that guernsey calf (steer) was 'hopping' some, and he had it butchered. The foreman at the packing plant testified this steer (he called it a 'ranny') had a small bruise on his left hindquarter. He trimmed it off, and the carcass passed inspection.
Appellant's first assignment is that plaintiff did not make a submissible case because he did not prove that it was defendant's steer which he hit. He argues that plaintiff in his deposition testified that nothing was said by the defendant that night concerning the ownership of the cattle; and that in any event defendant, not having been home, could not have known it was his steer that plaintiff hit. He relies on plaintiff's deposition to contradict the testimony as to his alleged admission that the cattle were his. But previous contradictory statements are for the jury, and this is true as to statements made in depositions. 1 Defendant also asks, 'What happened to the other cattle plaintiff said he saw, who owned them?' The implication is that since it was seemingly impossible for defendant's other cattle to have been out, it follows that plaintiff's story that he saw five cows cannot be true; or, if true, that the cattle were not defendant's or his responsibility. The jury was not required to believe the testimony of defendant and his son in regard to the number and location of his cattle, the character of gates and fencing, and the impossibility of the cows having gotten out; but the primary question concerns ownership of the Guernsey steer which defendant concedes was in the barn lot. The jury might not have believed the plaintiff as to the fact that there were five animals loose on the highway but did believe that the Guernsey steer was there. The fact that only the steer was on the highway, if so, would have a bearing on contributory negligence and causal connection, in that a jury might have found, had the issue been submitted to it, that plaintiff should have seen the steer in time to have avoided it; but this does not affect plaintiff's case as to submissibility. The plaintiff's case is supported by the admitted fact that the gatepost was loose and the bottom of the gate was pushed open. It is also supported by the fact that the next morning the Guernsey steer was 'hopping a little bit' and was butchered. The Missouri Stock Law (RSMo 1959, Sec. 270.010) permits the inference of negligence from the fact the animal was loose on the road. We believe plaintiff made a submissible case.
Appellant claims error in the refusal of his Instruction No. 5 which was as follows:
'The Court instructs the jury if you find and believe that at the time and place mentioned in evidence the plaintiff, Bob Cox, was operating his automobile eastwardly on the highway shown in evidence and if you further find that at said time and place a steer and other cattle were on the highway and in the path of plaintiff's automobile, and if you further find that in the exercise of the highest degree of care and by keeping a lookout ahead the plaintiff, Bob Cox, could have seen that there was danger of a collision with said steer or cattle if he continued to drive his automobile eastwardly, and if you further find that the plaintiff failed to exercise the highest degree of care in failing to keep a careful and vigilant lookout, if so, and that in so failing the plaintiff's car collided with the steer shown in evidence and that the plaintiff, Bob Cox, was thereby negligent and that such negligence, if you find he was negligent, directly contributed to cause his injuries and damages, if you find he was injured or damaged, then you are instructed that plaintiff, Bob Cox, is not entitled to recover on his petition in this case and this is true regardless of whether the defendant was negligent.'
Defendant had pleaded contributory negligence. Plaintiff's Instruction No. I told the jury that negligence on the part of the defendant might be inferred from the fact that the cattle were on the highway at the time of the collision.
Prior to its reenactment (Laws 1939, p. 360), the Stock Law statute, Sec. 270.010, V.A.M.S., did not contain any reference to negligence. However, this court in Carr v. Threlkeld, Mo.App., 31 S.W.2d 592, had held that the mere presence of unattended animals on the highway makes a prima facie case of violation of the stock law. It treated such fact as analogous to res ipsa loquitur in respect to making a case of primary negligence. The reenactment included a provision which solidified that interpretation by making it a defense that the animals were outside the enclosure through no fault or negligence of the owner. Since then it has been interpreted as permitting a recovery on the theory of negligence, with the burden of showing lack of negligence on the owner. Keefer v. Hartzler, Mo.App., 351 S.W.2d 479, 480-481; King v. Furry, Mo.App., 317 S.W.2d 690; Anderson v. Glascock, Mo.App., 271 S.W.2d 243. Meshed with the proposition of animals running loose on the highway are the common law in regard to negligence and the statutory rules of the road concerning the operation of automobiles on the road. Every driver is required to use the highest degree of care (Sec. 304.010 V.A.M.S.; Ficken v. Hopkins, Mo., 389 S.W.2d 193) in respect to animals as well as persons and vehicles. 12 So we consider negligence and contributory negligence proper subjects of inquiry in a case brought under the stock law.
An instruction on failure to keep a lookout is generally considered sufficient if it hypothesizes the failure to keep a lookout and requires a finding that such failure was negligence which directly caused or contributed to the collision. Miller v. St. Louis Public Service Company, Mo., 389 S.W.2d 769; Moore v....
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