OPINION
REINHARD, J.
This
action was brought by the appellee against Eichel and Weil,
the appellants, to recover damages for injuries sustained by
appellee from a steer belonging to appellants, which ran
against and over the appellee while driven through the
streets of the city of Evansville by the employees of the
appellants. The theory of the complaint is negligence in
driving the animal.
There
was a trial by jury and a verdict and judgment for appellee
over a motion for a new trial.
The
only error assigned is the overruling of the motion for a new
trial.
The
causes assigned for a new trial call in question the
sufficiency of the evidence to sustain the verdict.
We
gather from the evidence that Eichel and Weil had in their employment, one McKeever, who drove to
their stockyard from the steamboat landing two steers which
had been shipped to them by boat, on the Ohio river. McKeever
was riding a horse while driving the animals, and there is
evidence tending to prove that he was driving them very fast.
Senhenn, the appellee, in going from his home to his work,
after dinner, was run over by one of these steers. Senhenn
was at the time on the sidewalk, and a few paces in the rear
of him was a blind man named Racine, to whom he called, when
he saw the cattle approaching at a fast run, urging him to
stand close to the fence near by to save himself from being
run over. Racine obeyed the warning and escaped unhurt. Not
so with the appellee, however. He testifies in relation to
the subject, as follows:
"The
big steer was coming towards me rapidly, running on the
sidewalk. I had a gum overcoat on my arm and shoved it at him
as he was coming toward me. It was done so quick there was no
chance to get out of the way. The steer knocked me in the
face, breast and stomach, knocked me into the middle of the
street, in the mud. Knocked me down and ran over me. There
was blood in my mouth. I got up and staggered home and washed
myself up. One of my teeth was broken off and one knocked so
loose that Dr. Wedding pulled it out next morning with his
fingers. They were my upper front teeth. Had pains in my
neck, stomach and back; felt very bad. I made three visits to
Dr. Wedding. He gave me two or three prescriptions. Kind of
black,
stringy blood passed from me for about a month. I spit blood
for eight or ten days, perhaps two weeks. * * I shoved the
coat at the steer to scare him off, to keep him from striking
me. Do not think I had a chance to get out of the way. I
thought the steer would get off the sidewalk. The steer had
his head up; he appeared to be wild and frightened. It was
done in a second. I did not hear any one holler. * * The
sidewalk is a brick pavement about ten feet
wide. A great many people pass along the street at that time
of day, and school children going to school."
One of
the questions presented for our determination is whether the
facts proved were sufficient to authorize the jury to find
that McKeever, who drove the steers, was guilty of
negligence.
Persons driving cattle through the streets of cities or towns
are bound to use the utmost diligence and care to avoid
injuries to passers-by. Their liability is somewhat in the
nature of that of a common carrier. Ficken v.
Jones, 28 Cal. 618. The court in that case says:
"It
is a matter of importance to understand what is the rule in
respect to the degree of care and diligence which parties
engaged in driving cattle, reared in the rural portions of
the country, through the streets of a populous town or city
must observe and exercise, in order to prevent the happening
of injuries to those lawfully in such streets, and
necessarily exposed to dangers which they may not have the
power to avert, and from which there may be no way of escape.
It is impossible for a person acquainted with the disposition
of cattle raised upon farms or in the open country
notwithstanding they may be what are commonly known as tame
cattle, to be oblivious to the fact that when brought into
and conducted through the highways of a city, they are apt to
become alarmed and excited by the presence of many people,
and at the sight of new and strange objects, and by the noise
and confusion around them on every side. From such exposure
cattle often become wild and difficult of management, and not
unfrequently some of them become fierce from fright, if not
so before then, and dangerous to people who may not be aware
of their presence.
"In all cases where, by the conducting of any lawful
business, the lives and limbs of human beings are placed in
peril, the law requires of the proprietors and managers of
that business the utmost care and diligence. The driving of
cattle through the streets of a city is attended with danger
to persons who are of right...
