Harris v. Carstens Packing Co.

• Decision Date: 12 September 1906
• Citation: 86 P. 1125,43 Wash. 647
• Parties: HARRIS v. CARSTENS PACKING CO.
• Court: Washington Supreme Court

86 P. 1125

43 Wash. 647

HARRIS v. CARSTENS PACKING CO.

Supreme Court of Washington

September 12, 1906

Appeal from Superior Court, King County; Miles Poindexter, Judge.

Action by T. F. Harris against the Carstens Packing Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and new trial ordered.

Kerr &amp McCord, for appellant.

Jas Hart and Allen, Allen & Stratton, for respondent.

MOUNT C.J.

Action for damages for personal injuries inflicted on the respondent by a steer belonging to defendant. There was a verdict for $1,000, and judgment for the plaintiff. Defendant appeals.

The principal material issues in the pleadings are stated in the complaint as follows: '(2) That on the 21st day of November, 1904, the defendant, Carstens Packing Company, was the owner of a certain steer, which said steer was a wild vicious, and dangerous one; was in the habit of attacking, hooking, and goring persons. That said defendant well knew that said steer was wild and vicious, and well knew that it was in the habit of attacking persons, hooking and goring them. (3) That on or about said 21st day of November, 1904, the said steer was by the defendant turned loose upon the public highway and was permitted to roam unattended on the public highway near Stuck Junction in the state of Washington.' The defendant denied these allegations. The facts are substantially as follows: The appellant is engaged in the meat business in this state, having large establishments in the cities of Seattle and Tacoma. Its slaughterhouses are located at Tacoma. A large number of cattle are shipped by rail from Eastern Washington and Oregon to Seattle, and are then driven along the public highway to Tacoma. About November 20, 1904, appellant started to drive 128 head of fat cattle from Seattle to Tacoma. This band of cattle was in charge of two boys, 16 and 18 years of age, respectively, who were experienced drovers. The cattle were unloaded from the cars on the morning of November 20th, and on that day were driven to O'Brien, and the next day were driven to Stuck Junction, about 25 miles from Seattle At Stuck Junction the highway crosses the tracks of the interurban electric railway. On the evening of the second day the cattle were driven across the interurban tracks, and half a mile beyond, where the drovers sought pasture for the night. Being refused, they turned the cattle back, and drove them to Charles Biggs' place, which they had passed about one mile. They arrived at Mr. Biggs' place between 6 and 7 o'clock in the evening. It was raining hard and was quiet dark. While the drovers were placing the cattle in pasture, one of the steers turned back and returned to the interurban track about half a mile away, and was there overtaken by one of the drovers, who attempted to drive the steer back to the main hard. The steer, instead of following the highway, turned upon the railway track and jumped over the metallic cattle guard into the inclosed right of way of the railway company. After crossing the cattle guards about 25 feet therefrom, the steer came in contact with the 'third rail,' and was prostrated by an electric shock. The drover, who was there, waited until the other drover came up. One of them held the horses which they were riding, and the other took a stick and went over to the steer and punched him with the stick. The drovers, thinking the steer was dead or about dead, left him lying there and returned to the other cattle and placed them in the pasture, and them returned for the night to Auburn about two miles back on the road by which they had come. Soon after the steer was prostrated and left near the railway track, the respondent and his wife were returning on the interurban train to their home. They got off the train at about 6:45 o'clock p. m., at Stuck Junction, which was about half a mile from their house. After the train started on, they went out into the highway, walking on their way home. Just after they entered the highway, walking along the side thereof by a ditch which contained about one foot of water, the steer came charging upon them from behind. Respondent's wife jumped into the ditch, which was two or three feet deep, and escaped. The steer caught the respondent, threw him to the ground and charged him again, goring and treading upon him, fracturing his skull and bruising his back and spine, and injuring him severely. As to the foregoing facts there is no dispute.

On the trial of the case, the court, over the objection of the appellant, permitted testimony on the part of the respondent to show that the drovers, on the morning following the injury, told certain witnesses that the steer was vicious and had gored or attempted to gore the horses and persons on the highway. The object of this evidence was to show that the drovers knew the vicious character of the steer prior to the injury, which was a material point in the case for the knowledge of the drovers is imputed to the owner. In the case of Cook v. Stimson Mill Co., 36 Wash. 36, 78 P. 39, we said: 'The rule is settled in this state that declarations of an agent made after the transaction cannot bind the principal, unless they are so related as to constitute a part of the res gestae,' and cited several cases supporting the rule. The drovers were the agents of the appellant. Their statements made the next morning after the injury cannot be held to be a part of the res gestae. We are unable to distinguish the principle involved in that case from the principle involved in this case. If the statements had been made before the injury, or if it had been shown that the steer had committed or attempted to commit some vicious act prior to that time, in the presence of the agents, this would have been proper evidence to show that the drovers had knowledge of the vicious character of the steer; but these facts cannot be proved by the statements of the agent made after the injury. This was a material part of the evidence, and may have been the controlling one upon the jury. It was error for the trial court to receive these statements. In view of the fact that a new trial must be had, we shall consider other alleged errors. It is claimed that the court erred in receiving testimony to the effect that the steer remained in the vicinity for about 10 days, and during that time attacked a wagon filled with school children and also other persons, when the steer was finally killed. The court also allowed testimony...