Nulsen v. Priesmeyer

• Decision Date: 27 March 1888
• Citation: 30 Mo.App. 126
• Parties: MAX A. NULSEN, Respondent, v. CHARLES PRIESMEYER, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 126

MAX A. NULSEN, Respondent, v. CHARLES PRIESMEYER, Appellant.

Court of Appeals of Missouri, St. Louis.

March 27, 1888

APPEAL from the St. Louis Circuit Court, HON. GEORGE W. LUBKE Judge.

Reversed and remanded.

AUG REBENACK, for the appellant: In an action to recover for injury from vicious habits of domestic animals the scienter on the part of the defendant must be shown to entitle plaintiff to recover. Bell v. Leslie, 24 Mo.App. 661; Patee v. Adams, 4 P. 505; 1 Chit. Pl 82; 2 Id. 680; Decker v. Gammon, 44 Me. 328; Vrooman v. Lawyer, 13 Johns. 339; Buxendin v. Sharp, 2 Salk 662; Mason v. Keeling, 12 Mod. 332; Holden v. Shattuck, 34 Vt. 336; Kennedy v. Morgan, 57 Vt. 46; Sweeney v. Railroad, 10 Allen 372; Rumsey v. Nelson, 11 N.E. 63. The defendant is not liable in this action for having ordered the mule shot and killed. The mule was injured so that his intestines protruded. The natural result would have been death. Harrison v. Railroad, 88 Mo. 629, 630; Railroad v. Finnegan, 21 Ill. 649; Jackson v. Railroad, 74 Mo. 526. The court should have non-suited the plaintiff for the further reason that it appeared conclusively from plaintiff's own evidence, that plaintiff, i. e., his driver, was as negligent as the defendant's driver. Schoenlau v. Friese, 14 Mo.App. 436. There being no conflict of testimony, the court shall determine the question of negligence. Fletcher v. Railroad, 64 Mo. 484. The absence of hitching posts an excuse for not taking due care: Telegraph Co. v. Quinn, 56 Ill. 319. The court erred in asking the defendant this question: " Then was that the amount you expected to pay Mr. Nulsen at the time you ordered him shot?" This question and its answer was calculated to prejudice the defendant's case before the jury and was irrelevant, injurious, and improper.

CHRISTIAN WIND, for the respondent: Taking the bits out of the horses' mouths and leaving them to drink, without in anywise securing them, or leaving any one in attendance, on a public thoroughfare like Front street, in East St. Louis, with four railroad tracks, within one hundred feet, boats continually passing up, down, and across the river, was certainly gross negligence. Wharton on Negligence, 820. Plaintiff does not and never did contend that the killing of plaintiff's mule at defendant's command rendered him liable for the injury occasioned by the collision; but we do maintain that it was perfectly proper for us to draw out of defendant on cross-examination an admission that after he had learned the facts he considered himself liable to plaintiff and proposed to pay the reasonable value of the mule.

OPINION

PEERS J.

It appears in this case that the respondent was the owner of a team, one horse and two mules attached to a coal wagon, which had just been loaded with coal in East St. Louis, and then driven out of the sheds across the railroad tracks, and about seventy-five feet north of the coal-sheds, when the driver returned to the office, to get bridge tickets, leaving his team attached to the load standing on Front street in said city. On one side of the street is a sidewalk and on the opposite side are three railroad tracks, which are on a level with the street, and from there the street descends to the Mississippi river. Just in front of where respondent's driver stopped his team, another railroad track crosses the street, and connects the other tracks with a depot on the opposite side of the street, leaving plenty of room for one team to pass another on either side.

Appellant was also the owner of a coal team, consisting of a wagon and two horses. Just prior to the accident the driver in charge of the latter team drove up to a saloon and watering trough, a little south of where respondent's team stood, and in the rear thereof, on the opposite side of the street, and taking the bits out of his horses' mouths, left them and went into the saloon without tieing or otherwise securing them, or leaving any one in charge. While in the saloon, his horses ran away, crossed the street and ran into the respondent's team, the pole of appellant's wagon striking the saddlemule of the respondent and so injured it that the bowels protruded. Appellant was sent for and when he arrived, learning the facts and seeing the condition of the mule, and believing it could not recover, ordered it taken out of the team and shot.

On the trial below, before a jury, the respondent had a verdict for $203.90, but on a motion for a new trial, was required bye the court to remit $53.90 thereof, which he did; the motion for a new trial was thereupon overruled, and the case now comes here by appeal.

There are a number of questions presented by the record, but as the case will have to be retried, we feel called on to pass upon but one of them. We will say, however, that we discover no error in the action of the court, in refusing the demurrer to the respondent's evidence, nor in giving and refusing instructions. The case was not tried upon the theory of appellant's liability in ordering the mule shot. That was an act of humanity, as it was very evident the animal could not recover from the injury. Neither was recovery sought on the ground of " vicious propensity," but solely on the theory of gross negligence in appellant's servant, in removing the bits from the mouths of the animals leaving them unhitched and unattended, in a public street where locomotive engines and trains of cars are passing continuously, and where teams are liable, from the very nature of the surroundings, to take fright and run away. The trial court properly declared the law upon all these propositions. But the appellant...