Lyman v. Dale

• Decision Date: 08 May 1911
• Citation: 136 S.W. 760,156 Mo. App. 427
• Court: Missouri Court of Appeals
• Parties: LYMAN v. DALE.<SMALL><SUP>†</SUP></SMALL>

136 S.W. 760

156 Mo. App. 427

LYMAN v. DALE.^†

Springfield Court of Appeals. Missouri.

May 8, 1911.

1. JUSTICES OF THE PEACE (§ 100) — PLEADING — NEGLIGENCE.

The statement alleged that defendant's employé on a certain date was leading a wild and unruly mule along a street "in such a careless and negligent manner as to permit said mule to run into and against plaintiff's said buggy," injuring it. Held, that the cause of action alleged was for negligence in the manner of leading the mule, and not in having an unruly mule on the street, so that plaintiff need not prove that the mule was wild and unruly.

2. NEGLIGENCE (§ 56) — "PROXIMATE CAUSE" — DEFINITION.

The term "proximate cause" signifies a breach of a duty owed another followed by injury to him either directly or through its consecutive consequences under circumstances making it probable that injury would result from the breach of such duty.

3. ANIMALS (§ 67) — INJURIES — NEGLIGENCE.

While one permitting domestic animals to be where they should not be is liable for resulting injuries, if the animal was in a place it has a right to be the owner is only liable if negligent in handling it.

4. NEGLIGENCE (§ 1) — DEFINITION.

"Negligence" is a relative term, and its existence must be determined in view of the surrounding circumstances; the test being whether the person charged acted as an ordinarily prudent man would have done in the same or similar circumstances.

5. APPEAL AND ERROR (§ 930) — PRESUMPTIONS FAVORABLE TO VERDICT.

After verdict the appellate court should give the evidence the most favorable construction with a view to upholding the verdict.

6. WITNESSES (§ 266½) — EXAMINATION — CROSS-EXAMINATION — BINDING EFFECT ON PARTY.

Plaintiff is not bound by the testimony of defendant's witness on cross-examination.

7. MUNICIPAL CORPORATIONS (§ 705) — USE OF STREETS — INJURIES BY ANIMALS — CARE REQUIRED.

One leading a mule in a public street should use ordinary care to keep the animal under control.

8. MUNICIPAL CORPORATIONS (§ 706) — USE OF STREET — NEGLIGENCE — EVIDENCE.

In an action for injuries to plaintiff's buggy by contact with a mule led in a street by defendant's employé, evidence held to sustain a finding of negligence by the employé in giving the mule too much rope, while passing the buggy.

9. MUNICIPAL CORPORATIONS (§ 706) — NEGLIGENT USE OF STREET — PROXIMATE CAUSE.

In an action for damage to plaintiff's buggy by contact with a mule led in a street by defendant's employé, evidence held to sustain a finding that the negligence of such employé in giving the mule too much rope was the proximate cause of the injury.

Gray, J., dissenting.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by B. L. Lyman against Horace Dale. From a judgment for plaintiff, defendant appeals. Affirmed.

W. D. Hubbard and J. T. White, for appellant. Roscoe Patterson, for respondent.

COX, J.

Action for damages caused by a mule while being led by a servant of defendant, coming in contact with the buggy wheel of plaintiff and breaking the wheel. The case was begun before a justice of the peace, where, upon trial, plaintiff recovered the sum of $5, and defendant appealed to the circuit court, where, upon trial anew before the court, the issues were again found for plaintiff and his damages assessed at $5, and defendant has appealed.

Plaintiff was passing along Walnut street in the city of Springfield, traveling in a buggy. He met one Parker, a servant of defendant who was riding one mule and leading another. As they passed, going in opposite directions, the mule being led shied and came in contact with the front wheel of plaintiff's buggy and broke it.

The charge of negligence by plaintiff in his statement filed before the justice of the peace is "that defendant's agent and employé, on the aforesaid date, was leading a wild and unruly mule along the aforesaid street in the city of Springfield, in such a careless and negligent manner as to permit said mule to run into and against plaintiff's said buggy." It is contended by appellant that, the plaintiff having charged the mule to be wild and unruly, he must prove that fact or fail in his action. There was no evidence in this case that the mule was wild and unruly. The evidence was that it was well broken, but was high-spirited. We do not think, however, that the wild and unruly character of the mule was the material allegation of plaintiff's cause of action. As we regard the statement, the material allegation was the charge that defendant's servant was careless and negligent in the manner in which he handled the mule.

It is also contended by appellant that defendant's servant was not shown to have been negligent, and that the shying of the mule was not the proximate cause of the injury, but that the proximate cause was the material in the street which caused the mule to scare.

It is hard to give a definition of "proximate cause" that will fit every case. About all that can be done is to define it in general terms, and then the application must be made under the facts of each particular case when it arises. The St. Louis Court of Appeals, speaking through Judge Goode, in the case of Lawrence v. Ice Company, 119 Mo. App. 316, 328, 93 S. W. 897, 899, defines "proximate cause" as follows: "As used in judicial decisions, the term signifies a breach of duty owed to a person, followed by injury to him, either as the direct result of the dereliction or through its consecutive consequences, and subject to the condition that there must have been sufficient probability of the breach proving detrimental instead of innocent, that, in reason, blame for the injury may fairly be imputed to the wrongdoer." This definition has been since approved by the same court, speaking through Judge Reynolds, in Hodges v. Railroad, 135 Mo. App. 683, loc. cit. 691, 692, 116 S. W. 1131, and it is in harmony with the authorities generally. Bokamp v. Railroad, 123 Mo. App. 270, 100 S. W. 689; Haley v. Railroad, 179 Mo. 30, 77 S. W. 731, 64 L. R. A. 295; Railroad v. Kellogg, 94 U. S. 469, 24 L. Ed. 256.

The cause of the injury in this case was the shying of the mule toward the plaintiff's buggy and its coming in contact with the wheel. To hold defendant liable, it must appear that his servant Parker was negligent in handling the mule, and that this negligence caused the mule to come in contact with the buggy wheel.

If a party negligently permits his domestic animals to be in a place where they have no right to be, and while there they injure another, he is liable; but a party in control of such an animal at a place where he has a right to be can only be held liable for injury caused by the animal when he is guilty of negligence in handling it. Eddy v. Union R. Co., 25 R. I. 451, 56 Atl. 677, 105 Am. St. Rep. 897; Dickson v. McCoy, 39 N. Y. 400; Caldwell v. Arnheim, 152 N. Y. 182, 46 N. E. 310; Crozier v. Read, 78 Hun, 181, 28 N. Y. Supp. 914; Haines v. Keahon, 46 App. Div. 164, 61 N. Y. Supp. 757.

Negligence is always a relative term, and in determining whether a party has been negligent his act must be viewed in the light of the surrounding circumstances, and the final test always is whether or not the party charged with negligence acted in the given case as an ordinarily prudent man would act in the same or similar circumstances.

The contention of respondent at the trial was that the mule being led was given too much rope, and was not held in as closely by defendant's servant at the time of the accident as it should have been.

After verdict it is our duty to give the evidence the most favorable construction consistent with sound reason, with a view to upholding the verdict. If we view the evidence in this case in that light, we have the following facts: The defendant's servant was riding one mule and leading another large, high-spirited mule along Walnut street in the city of Springfield. At a point in said street, at which some brick and dirt had been placed, which necessarily narrowed the street somewhat, he met plaintiff traveling in a buggy. There were red lights on the pile of brick. The mule being led was on the side next to the plaintiff and was led by a halter rope five or six feet long; the party leading it having hold at or near the end. The mule being led scared at the obstruction in the street, or the red lights, and shied over sideways toward plaintiff's buggy, whipped around, and got his hind leg in between the shaft and wheel of the buggy and broke the wheel in getting it out. The evidence does not clearly show the distance between the mule and plaintiff's buggy at the time the mule scared. The party leading the mule testified on the part of defendant, on cross-examination, that there was about two feet between them; but this was not binding upon plaintiff. The testimony on the part of plaintiff was that the mule was being led out at the end of a rope five or six feet long; that it shied over sideways toward the buggy, then whipped around and caught its leg between the shaft and wheel of the buggy. Evidently, if there had been but two feet between them, it would not have had room to shy over toward the buggy, then whip around also, so, if we take the evidence most favorable to plaintiff, the distance between them must have been much more than two feet. There was evidence, too, that he could have kept the mule closer up to him than he did.

That there should be some limit to the amount of rope given a Missouri mule in a public street of a city is self-evident. It is also clear that a man, leading a high-spirited mule through a street at a place where it is partly obstructed by an object calculated to scare horses or mules, should use greater precaution and hold the mule closer to him when meeting and passing another at such point in the street than would be required if the street were unobstructed, and nothing to call his attention to the fact that the mule would be likely to scare....