Perrine v. Union Stock Yards Co.

• Citation: 116 N.W. 776,81 Neb. 790
• Decision Date: 21 May 1908
• Docket Number: 15,217
• Parties: THADDEUS D. PERRINE, APPELLEE, v. UNION STOCK YARDS COMPANY, APPELLANT
• Court: Nebraska Supreme Court

116 N.W. 776

81 Neb. 790

THADDEUS D. PERRINE, APPELLEE, v. UNION STOCK YARDS COMPANY, APPELLANT

No. 15,217

Supreme Court of Nebraska

May 21, 1908

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.

AFFIRMED.

Greene Breckenridge & Matters, for appellant.

Lambert & Winters, contra.

ROOT C. CALKINS, C., concurs.

OPINION

ROOT, C. J.

Defendant owns and maintains extensive stock yards in the city of South Omaha. It leases office rooms in its exchange building to commission men, and those tenants, as an incident to said lease, are given the use of pens for the receipt and detention of live stock consigned to them; defendant reserving the right to use the pens whenever it may desire. The alleys between the pens are paved, some with plank, and others with brick or cement, and are used in handling stock, and by commission men and their employees, and the owners and purchasers of stock, and are kept in repair by defendant. Salesman and buyers generally ride to and fro on horseback in and about the pens and yards. Plaintiff was employed as a salesman for a commission firm, and had been engaged in that business around said yards for one firm or another for some 17 years preceding the accident. An alley, running north and south, and paved with plank divided the block of pens wherein plaintiff's employers received and retained stock. It was 16 feet in width, with gates about 12 feet from either end, so constructed that the alleyway might be completely closed, and between those gates smaller ones gave access to the pens on either side of the way. At the time of the accident plaintiff was piloting a prospective purchaser of stock to said pens. He was riding along the north side of the block, and turned into the alley at the northeast corner thereof to go south. The gate, which was hinged to a post on the west side of the alley, was about one-third open, and as plaintiff's horse turned south, close to the east side of the alley, it either stumbled or slipped, at a point about 4 feet north of the gate, and 8 feet south of the northern exit of the alley, and, failing to recover its footing, fell, severely injuring plaintiff. The evidence tended to prove that a hole in the pavement, some 6 inches wide and deep, and from 12 to 24 inches in length, had existed for some 6 weeks at the point where the horse stumbled or slipped, and that the horse stepped therein. The horse was furnished plaintiff by his employers, and had been used by him about 18 months. The evidence tended to prove that the animal was awkward, and unsuited for riding, and that it was smooth shod at the time of the accident. Plaintiff recovered a verdict, and defendant appeals.

1. It is not claimed that the verdict was excessive, but defendant insists that the issue of its liability was not properly submitted to the jury, and that the court should have instructed the jury to bring in a verdict for it. Counsel very succinctly sum up their argument: "But in this case of an invitee while engaged in his own business, as was plaintiff in this suit, the obligation of the owner of the premises to exercise reasonable care to maintain them in a reasonably safe condition hinges upon the conduct of the user; and there is no obligation in such a case as this to do more than to refrain from wanton and aggressive injury except toward persons who are themselves in the exercise of ordinary care in the use of the premises." Complaint is also made that the court did not specifically direct the jury's attention to the character of the horse and the condition of its shoes. The trial judge's instructions are involved, and might have been condensed, but they evidence his desire to present every phase of the evidence and law, and to give defendant the benefit of all of its defenses. The jury were instructed that the burden of proof was on plaintiff to prove the material allegations in his petition; that if ordinary care and prudence dictated that said horse should be sharply shod, or handled otherwise than plaintiff controlled it, and said facts were the proximate or a contributing cause of the injury, plaintiff could not recover. In the seventh instruction the jury are instructed that, before considering defendant's alleged negligence, they must ascertain whether "plaintiff was exercising reasonable care and prudence for his own safety," and, further, if they found from all the facts and circumstances, as shown by the evidence, that plaintiff's acts did not, but that defendants' negligence, as alleged, did, proximately cause the injury, that defendant would be liable; that they should take into consideration plaintiff's knowledge of the conditions in the yards, and that "the law requires the plaintiff to make that use of his senses as a man of ordinary prudence would have made under the circumstances." In the eighth instruction the judge said that defendant was charged with the duty of reasonable and ordinary care in keeping and maintaining its alleys and passageways in such a reasonably suitable and safe condition for travel as was consistent with the purposes for which they were used, and that slippery conditions, caused by rains, drainage or the excretions of animals, would not...