McComas v. Sanders
| Decision Date | 25 January 1941 |
| Docket Number | 35055. |
| Citation | 109 P.2d 482,153 Kan. 253 |
| Parties | McCOMAS v. SANDERS et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Generally the owner of a domestic animal not naturally vicious is not liable for injury done by it when it is in a place where it has a right to be, unless it is, to the owner's knowledge, vicious.
The owner of a domestic animal is bound to take notice of general propensities and characteristics of the class to which it belongs, and must anticipate and guard against them if of a nature to cause injury.
An owner of an animal must use that degree of care to restrain the animal that an ordinarily prudent person would use.
Petition which alleged that colt which had not been halterbroke was led into auction ring at livestock sales pavilion and that the colt became frightened, reared up and lunged into crowd and came down and struck the foot of plaintiff who attended the sale as a prospective buyer, failed to state a cause of action against owners of the sales pavilion, in absence of allegation that they had knowledge that the colt was wild or that there was anything wrong with the halter and lead strap used.
1. The general rule is that the owner of a domestic animal not naturally vicious is not liable for injury done by it when it is in a place where it has a right to be, unless it is, to his knowledge, vicious.
2. The owner of a domestic animal is bound to take notice of the general propensities and characteristics of the class to which it belongs and must anticipate and guard against them if of a nature to cause injury, for he necessarily knows that some act causing injury will be committed if opportunity therefor is afforded.
3. A petition in an action for damages alleged to have been inflicted by a horse led into a sales ring in which a public auction was being conducted examined, and held, there was a failure to plead negligence in the manner and method in which it was led, and that the petition did not state facts sufficient to constitute a cause of action.
Appeal from District Court, Reno County; J. G. Somers, Judge.
Action by Oscar McComas against Jess Sanders and another, doing business as the Sanders & Woodward Live Stock Company, for injuries sustained when a horse which was led into auction ring lunged into a crowd and struck the plaintiff's foot. From an adverse judgment, the plaintiff appeals.
Roy C Davis, Warren H. White, William H. Vernon, Jr., and Eugene A White, all of Hutchinson, for appellant.
J. N. Tincher, Clyde Raleigh, A. Lewis Oswald and John Fontron, all of Hutchinson, and Leaford F. Cushenberry, of Medicine Lodge, for appellees.
This was an action to recover for damages alleged to have been sustained by reason of defendants' negligence. The trial court treated defendants' motion to strike various allegations of the petition as though it were a demurrer and sustained it, and plaintiff appeals. He does not contend there was error in the method of treatment but only that the result was erroneous.
The petition alleged that the defendants, as partners, conducted a sales yard in Hutchinson, handling all kinds of livestock that the sales yard consisted of a central ring about sixty feet in diameter which was enclosed by a fence consisting partly of boards and partly of woven wire and that seats were arranged outside of the fence; on December 9, 1938, plaintiff attended an auction sale of horses and secured a seat outside of the fence; there was a large attendance at the sale consisting of several thousand people, and defendants had permitted 150 to 200 people to come inside the fence and to stand 15 to 20 deep in places around the sales ring and inside the fence, and plaintiff, who attended for the purpose of bidding upon horses offered, was unable to see and hear and was forced to leave his seat and to enter the enclosure in order to see the horses offered, hear the auctioneer and make himself heard as a bidder; that after he had entered the enclosure, one of defendants' helpers led a colt or young horse into the ring; it had not been halterbroke and was unused to crowds and attendant noise, and it became frightened and reared upon its hind legs and lunged into the crowd; the crowd gave way and jumped aside, but plaintiff on account of the confusion and numbers present was unable to get entirely out of the way and the wild horse came down and struck his foot. We omit all reference to injuries alleged to have been sustained. Plaintiff further alleged that his injures were wholly and proximately the result of the negligence of the defendants: 1, in permitting their employee to lead a wild unbroken young horse into the center of the ring, where there were a great many customers...
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Hopkins v. McCollam
...injury done by it when it is in a place where it has a right to be, unless it is known by the owner to be vicious. (McComas v. Sanders, 153 Kan. 253, 109 P.2d 482 [1941].).’ (Emphasis added.) 188 Kan. at 136, 360 P.2d 1107.” Miller, 11 Kan.App.2d at 521, 728 P.2d 407. The language we've jus......
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Henkel v. Jordan, 52828
...(1966); Berry v. Kegans, 196 Kan. 388, 411 P.2d 707 (1966); Gardner v. Koenig, 188 Kan. 135, 360 P.2d 1107 (1961); McComas v. Sanders, 153 Kan. 253, 109 P.2d 482 (1941). Under such cases, they argue, the plaintiff had the burden of proving two essential elements: (1) that the dog had viciou......
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Gardner v. Koenig
...for injury done by it when it is in a place where it has a right to be, unless it is known by the owner to be vicious. McComas v. Sanders, 153 Kan. 253, 109 P.2d 482. The foregoing rule may be conceded, but it does not control the facts alleged in the third amended petition. In the first pl......
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Mercer v. Fritts
...(1961), established a duty of due care in the handling of cattle owed to an invitee at a sales pavilion. It followed McComas v. Sanders, 153 Kan. 253, 109 P.2d 482 (1941), which found the same duty with respect to a nonvicious horse, was also owed to an invitee at a sales ring. It was the l......
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Animal Law in Kansas: What Every Lawyer Should Know
...[133] See McComas v. Sanders, 153 Kan. 253, 109 P.2d 482 (1941); See also Gardner v. Koenig, 188 Kan. 135, 136, 360 P.2d 1107, 1108 (1961). [134] Henkel v. Jordan, 7 Kan. App. 2d 561, 563, 644 P.2d 1348, 1350 (1982). [135] Id. at 1352. [136] Id. at 1350. [137] Canaday v. Midway Denton U.S.D......