Hockaday v. Panhandle Eastern Pipe Line Co.

• Decision Date: 04 December 1933
• Docket Number: No. 17764.,17764.
• Citation: 66 S.W.2d 956
• Court: Missouri Court of Appeals
• Parties: HOCKADAY v. PANHANDLE EASTERN PIPE LINE CO. et al.

66 S.W.2d 956

HOCKADAY v. PANHANDLE EASTERN PIPE LINE CO. et al.

No. 17764.

Kansas City Court of Appeals. Missouri.

December 4, 1933.

Appellants' Motion to Modify Opinion Denied January 8, 1934.

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

"Not to be published in State Reports."

Suit by Robert H. Hockaday, a minor, by next friend, William F. Hockaday, against the Panhandle Eastern Pipe Line Company and others. From a judgment for plaintiff, defendants appeal.

Reversed and remanded for a new trial.

Shughart & Johnson, of Kansas City, and W. M. Anderson, of Jefferson City, for appellants.

Silvers & Hargus, of Harrisonville, for respondent.

REYNOLDS, Commissioner.

The plaintiff, Robert H. Hockaday, a minor, respondent herein, is a resident of Cass county, Mo., and prosecutes this suit by William F. Hockaday, his next friend, for damages for personal injuries in the sum of $4,200 against the defendants, Panhandle Eastern Pipe Line Company, a corporation, and J. J. Connor & Son, a partnership comprised of J. J. Connor and Lawrence E. Connor, doing business as the Connor Construction Company, appellants herein.

The cause was instituted in the circuit court of Cass county on the 11th day of August, 1931, by petition duly filed. Plaintiff, being cast on demurrer to his petition, on March 1, 1932, filed an amended petition, to which a demurrer filed was overruled. Afterwards, a second amended petition was filed, to which a demurrer was again by the court overruled; thereupon the defendants, by their joint and separate answer, tendered the general issue to the second amended petition. Upon the issues thus made, the cause was tried before a jury on September 21, 1932, resulting in a verdict in favor of plaintiff for the sum of $750. From a judgment in plaintiff's favor rendered upon said verdict, the defendants, after an unsuccessful motion for a new trial, appeal.

Upon the trial at the close of the plaintiff's evidence, the defendants separately requested instructions in the nature of demurrers and for directed verdicts in behalf of each. Such instructions being denied, defendants rested and renewed their requests separately, as before, for such instructions at the close of the case and such instructions were again denied.

At the time the injuries complained of arose, the plaintiff resided with his father upon his father's farm some eight miles from Harrisonville. This farm was comprised of 240 acres, lying in two tracts, one of 160 acres and one of 80 acres, separated by a public road running east and west between them. The tract of 160 acres lies south of the road and the 80-acre tract lies north of the road and north of the west half of the 160-acre tract. Upon the 160-acre tract, the dwelling house, barn, barnyard, and a hog lot or pasture were situate. The 80-acre tract was being cultivated in corn. The hog lot or small pasture was between the dwelling house and barn, and a gateway therefrom opened on the public highway mentioned. Immediately across the highway from this gate, an opening or gap in the fence about the 80-acre tract led into the cornfield. There were a number of hogs confined and fed in the hog lot or pasture. The defendant Panhandle Eastern Pipe Line Company at such time was engaged in laying a pipe line upon and across the south side of the 160-acre tract; and the defendants J. J. Connor and Lawrence E. Connor, or Connor Construction Company, were the contractors laying the pipe line and constructing the same for the Panhandle Eastern Pipe Line Company. The plaintiff was engaged in plowing corn upon the 80-acre tract with a cultivator, upon which he was riding and to which he was driving a team of horses. He was driving south at a point about halfway between the north and south limits of the cornfield when a large hog, coming through the corn, frightened his team, causing it to run and upset the cultivator upon the plaintiff and drag him some distance, severely injuring him. This occurred early in the afternoon, between 2 and 3 o'clock. Between the same hours, some one was noticed driving a truck along the public road mentioned, entering with the same the feed lot or pasture where the hogs were kept, passing through the gateway and on through said lot without closing the gateway, going out the south side thereof, then over a crest in the farm toward the place where the pipe line was being laid. Soon afterwards, the truck driver returned, again passing through the feed lot and going on to the public road, the truck being loaded with welding bottles and gas tanks which had been used by defendants in their work. Upon reaching the public road, the truck turned west thereon and was driven down the road a short distance where the bottles appear to have been unloaded and left. Soon after the truck and its driver entered the feed lot or hog pasture, leaving the gate open, a large hog was seen to leave the feed lot through the gateway which had been left open and pass out across the public road through the gap in the fence about the 80-acre cornfield and disappear therein. There was no evidence of any other hog or hogs being at large on that date or in the cornfield. There was no evidence as to the identity of the truck or of the driver thereof, or for whom the welding bottles were removed or in whose employ, if any one, the driver was.

In his petition, the plaintiff charges negligence upon the part of defendants as follows: "that on or about the 22nd day of June, 1930, while residing on his father's farm in Cass County, Missouri, * * * the above named defendants herein, by their agents, servants, and employees did then and there wilfully trespass in and upon said farm and did then and there negligently and carelessly leave open and down gates about a certain feed lot in which there were a number of hogs on feed and did then and there wilfully trespass with a truck into and through said feed lot and negligently and carelessly frightened and stampeded said hogs so that...