Flowerree v. Thornberry

• Decision Date: 08 February 1916
• Docket Number: No. 14095.,14095.
• Citation: 183 S.W. 359
• Parties: FLOWERREE v. THORNBERRY.
• Court: Missouri Court of Appeals

183 S.W. 359

FLOWERREE v. THORNBERRY.

No. 14095.

St. Louis Court of Appeals. Missouri.

February 8, 1916.

Appeal from Circuit Court, Ralls County; Wm. T. Ragland, Judge.

"Not to be officially published."

Action by Paul W. Flowerree against Wade Thornberry. From a judgment for defendant, plaintiff appeals. Affirmed.

Hays & Heather, of Hannibal, E. L. Corwine, of Frankford, and Eby & Hulse, of New London, for appellant. E. L. Alford, of Perry, and J. O. Allison, of New London, for respondent.

REYNOLDS, P. J.

Action in damages for the negligent killing of a fox hound, said to be of the value of from $100 to $150, she being between 3 and 4 years old, well trained, very fast, of keen scent and high degree, subject to registration, and named "Lip." Plaintiff, here appellant, a blind man, had been coursing in the early morning of a July day and with two companions, riding in a buggy was traveling east along a highway toward his home. About 9 o'clock in the morning of the day they heard an automobile sound its horn about a quarter of a mile back of them and saw it coming east along the same road. There were eight hounds in the pack, four of them tied to the rear of the buggy, four of them, including "Lip" running loose. When the automobile was heard approaching, the driver of the buggy drove it to the south side of the road, clear of the south track of the road. "Lip" was then, according to the evidence for plaintiff, running alongside of the buggy and had reached even with the horse and apparently was attempting to cross in front of it when she was run over. According to defendant's testimony "Lip" and the three other loose dogs were on the north side of the road and when the automobile was heard the four of them attempted to cross the road ahead of the buggy; two of them got across, but "Lip" was struck and run over by the front and rear wheels of the machine, she then being about 50 feet in front of the buggy. Plaintiff's evidence was to the effect that the horn of the machine was sounded only once and when the machine was about a quarter of a mile back of the buggy, but the people in the buggy knew the machine was coming toward them, intending to pass, and so drove to one side, and that it passed them at a speed of from 25 to 30 miles an hour. The evidence of defendant was to the effect that the horn of the machine was sounded several times as it approached the buggy and that as it passed it was going at from 4 to 7 miles an hour — not to exceed six, said defendant himself.

The occupants of the buggy heard the hound yelp as the wheels of the machine ran over her, but did not know she was seriously hurt until some little time afterwards, when looking for her, they missed her, and going back the road found her lying by a pool of water. Picking her up and placing her in the buggy they carried her home, where she died about two hours after being run over. The occupants of the car testified that they did not know that the dog had been hurt, and defendant testified that the first he heard of it was when he was served with process in this action.

The charge, as set out in the first count of the petition is, that defendant "imprudently, carelessly, recklessly and negligently" ran his automobile "into, upon and across" the dog, thereby injuring her so that she died. The charge in the second count is that the act was done "wantonly, willfully, maliciously and intentionally."

The answer was a general denial.

At the close of the evidence the court at the instance of plaintiff submitted both counts to the jury, at the instance of defendant, among other instructions, giving those numbered 7 and 8, on which error is assigned. As the giving of these two instructions and the action of the court in overruling plaintiff's motion for a new trial are the only errors assigned, we set the instructions out, as follows:

"7. The court instructs the jury that the defendant had a right to assume that the bound in question would exercise the ordinary instincts of such animals...