Perlin v. Chappell, 4624

Decision Date11 March 1957
Docket NumberNo. 4624,4624
Citation96 S.E.2d 805,198 Va. 861
CourtVirginia Supreme Court

William L. Shapero (Maurice B. Shapero and Shapero & Shapero, on brief), for the plaintiff in error.

Henry E. Howell, Jr. (Jett, Sykes & Howell, on brief), for the defendant in error.

HUDGINS, Chief Justice.

HUDGINS, C.J., delivered the opinion of the court.

B. Perlin, defendant in the lower court, seeks by this writ of error to reverse a judgment for $10,000 entered on a verdict finding him guilty of negligence in permitting a 1100 pound, 'mixed-breed' Brahma heifer to escape from his stockyard and injure Norman Chappell, plaintiff in the trial court.

Defendant's first contention is that the evidence is insufficient to support the verdict.

The evidence, with all fair inferences therefrom stated most favorably to plaintiff, may be summarized as follows: Defendant owns and operates a stockyard and slaughterhouse within the city of Norfolk. About midnight on March 14, 1955, Carl Meixel, an employee of defendant, returned from Richmond with a truck load of 18 or 19 cattle, including the Brahma heifer, which he placed in pen 4 of the stockyard and locked them up for the night. The gate to this pen was at the end of a lane approximately 95 feet long and almost 11 feet wide. The other end of the lane led to the unloading platform or chute where the cattle had been unloaded from the truck the night before. On both sides of the lane there were other pens enclosed by board fences more than five feet tall with gates opening therefrom into it. In addition to this long lane, another lane at right angles to it led directly to the slaughter pen.

Between eight and eight thirty on the morning of August 15th, Carl Meixel and his brother, Walter, another employee of defendant, returned to the stockyard for the purpose of driving the cattle out of pen 4 into the slaughter pen to be killed and dressed. For this purpose they opened the gate to pen 4 and while yelling and waving pitchforks or large sticks, they prodded the cattle out of pen 4 into the lane, expecting to turn them into the lane leading to the slaughter pen. While they were driving the cattle down the long lane toward the loading chute and the lane leading to the slaughter pen, the Brahma heifer became frightened, 'excited' or 'skittish' and jumped out of the lane, over a fence more than five feet high, into pen 5. One of the employees opened the gate to pen 5 leading into the long lane and the other employees, hollering and waving his prodding stick, drove the heifer back into the lane with the other cattle. She again jumped from the lane back into pen 5, and this time tried to jump the outside fence which was five feet eight and one half inches high, broke the top board and fell back into the pen. The employees again drove her out of pen 5 back into the long lane. This time she ran by the other cattle all the way to the end of the lane where she jumped the outside gate, which was five feet three inches high, onto the loading platform, squeezed by a truck parked thereon, ran across an open field to and down Indian River road.

Carl Meixel jumped into a truck and started after the heifer. Walter Meixel informed the other employees of defendant in the slaughterhouse that the heifer had gotten out, and five of them ran out to assist in getting her back into the stockyard. Walter Meixel obtained a rifle and pursued the heifer in a car. Carl Meixel in the truck caught up with the heifer and unsuccessfully tried to knock her down. Thereafter she ran through the gate leading into the Colonna Shipyard and started across a railroad trestle.

In the meantime, Carl Meixel had followed the heifer into the shipyard and had gotten out of the truck when his brother arrived and gave him the rifle, because he was a better shot, and told him the gun was ready to shoot. About that time the heifer turned back from the railroad trestle and ran directly toward Carl, who aimed the gun but did not shoot because the safety was on. He stepped out of the heifer's path and as he did so she immediately thereafter struck plaintiff, an employee in the shipyard, on the left side and knocked him up against a pile of lumber, thereby inflicting the injuries of which he complains. At the time he was struck, plaintiff, who was 61 years old and weighed 220 pounds, was going from the oil house back to the shop in which he worked. Several people close to him were yelling 'the cow is coming back, don't try to stop her. ' It does not clearly appear just when plaintiff first saw the heifer, however, one of the eye witnesses testified that he appeared to be so frightened that 'he could not move.' The heifer stopped running approximately 100 feet from the point where she struck plaintiff and was killed by a single shot fired by Carl Meixel.

Defendant argues that under 'the present law existing in the State of Virginia, there was no duty upon appellant [defendant] to maintain fences. ' This line of argument is based on the admitted fact that the common law of England, which requires the owner of domestic animals, with or without a fence, to keep them off the land of other persons, is not in force in Virginia. We so held in Poindexter v. May, 98 Va. 143, 34 S.E. 971; Tate v. Ogg, 170 Va. 95, 195 S.E. 496. The fact that this common law rule is not the law in Virginia, does not relieve the owner of domestic animals of the responsibility under another principle of the common law, which 'imposes upon every person the duty to exercise ordinary care in the use and maintenance of his own property to prevent injury to others. ' Rice v. Turner, 191 Va. 601, 605, 62 S.E.2d 24.

Defendant also argues that he was guilty of no negligence because the fences around his stockyard were at least 'five feet high' and therefore lawful fences as defined in Code, § 8-869. A complete answer to this line of argument is that the statutory provisions, (Code, §§ 8-866 to 8-905), dealing with lawful fences and the trespass of stock are applicable within counties and not applicable within cities and towns. Furthermore, a 'statute is not necessary to establish the duty of ordinary care. Such duty may arise from statute, from a municipal ordinance, or from the relation of the parties. ' Rice v. Turner, supra, 191 Va., at page 605. Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 711; Smith v. Whitlock, 124 W.Va. 224, 19 S.E.2d 617, 140 A.L.R. 737; 2 Am. Jur., Animals, § 60, p. 737.

"Reasonable care' or 'ordinary care' is a relative term, and varies with the nature and character of the situation to which it is applied. The amount or degree of diligence and caution which is necessary to constitute reasonable or ordinary care depends upon the circumstances and the particular surroundings of each specific case. The test is that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury to another. ' Montgomery Ward & Co. v. Young, 195 Va. 671, 673, 79 S.E. 858; Chesapeake & O. Ry Co. v. Farrow's Adm'x, 106 Va. 137, 55 S.E. 569; Gardner v. Black, 217 N.C. 573, 9 S.E.2d 10.

The situation presented is that defendant was the owner and operator of a stockyard and slaughterhouse within the corporate limits of a large city containing a population of 213,513, according to the 1950 census; and approximately 13,000 cattle were processed through his plant annually. The evidence tends to show that defendant knew the tendency of the Brahma breed of cattle to be easily frightened excited and wild. In addition, his employees not only knew the propensities of this breed of cattle but they saw this particular heifer jump twice over a fence more than five feet high and try to jump over another fence five feet, eight and one half inches high. They testified that they drove her back into the lane with the other cattle, hoping to calm her. This they tried the first time but it had no effect upon her. They took no additional precautions to prevent her from escaping from the stockyard. The second time she was driven out of pen 5 into the lane she had an opportunity to make a running jump over the outside gate which was only five feet, three inches tall.

Dr. Stefano Pino, a veterinary surgeon and an expert on cattle, testified that when a cow is wild and excited she is likely to jump a fence five or six feet high and that the best and most reasonable way to have calmed this heifer was to have left her in pen 5.

In 3 C.J.S., Animals, § 145, p. 1247, it is said: 'The owner or keeper of a domestic animal is bound to take notice of the general propensities of the class to which it belongs, and also of any particular propensities peculiar to the animal itself of which he has knowledge or is put on notice; and in so far as such propensities are of a nature likely to cause injury he must exercise reasonable care to guard against them and to prevent injuries which are reasonably to be anticipated from them.'

'The sufficiency of the notice is a question of...

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    ...[must] exercise ordinary care in the use and maintenance of his own property to prevent injury to others.’ " Perlin v. Chappell , 198 Va. 861, 864, 96 S.E.2d 805, 808 (1957) (quoting Rice v. Turner , 191 Va. 601, 605, 62 S.E.2d 24, 26 (1950) ); accord Standard Oil Co. v. Wakefield, 102 Va. ......
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    ...[must] exercise ordinary care in the use and maintenance of his own property to prevent injury to others.’ ” Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d 805, 808 (1957) (quoting Rice v. Turner, 191 Va. 601, 605, 62 S.E.2d 24, 26 (1950) );8 accord Standard Oil Co., 102 Va. at 828, 47 S.E......
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