Robidoux v. Busch

• Decision Date: 15 February 1966
• Docket Number: No. 31736,31736
• Citation: 400 S.W.2d 631
• Parties: Patricia Ann ROBIDOUX, a Minor, by Melvin M. Robidoux, Her Guardian and Father, (Plaintiff) Respondent, v. August A. BUSCH, (Respondent) Appellant.
• Court: Missouri Court of Appeals

Page 631

400 S.W.2d 631

Patricia Ann ROBIDOUX, a Minor, by Melvin M. Robidoux, Her Guardian and Father, (Plaintiff) Respondent, v. August A. BUSCH, (Respondent) Appellant.

No. 31736.

St. Louis Court of Appeals, Missouri.

Feb. 15, 1966.

Rehearing Denied March 17, 1966.

Jenny & Cole, James A. Cole and Lawrence O. Davis, Union, for appellant.

Bruce Nangle, St. Louis, for respondent.

RUDDY, Presiding Judge.

Plaintiff, an eight year old girl, brought this action by and through her father against Anheuser-Busch, Inc., a corporation, and August A. Busch, an individual, to recover damages for injuries sustained when she was run over by the wheel of a wagon pulled by six miniature mules while she was on a sightseeing tour through Grants Farm, a well known showplace in St. Louis County, owned by defendant, August A. Busch. A motion for directed verdict filed at the close of plaintiff's case by Anheuser-Busch, Inc., a corporation, was sustained. Defendant, August A. Busch, appeals from a judgment against him in the amount of $8000. We shall refer to the parties in this appeal as plaintiff and defendant.

Among the many points relied on by defendant is one wherein he contends that the trial court erred in overruling his motion for a directed verdict at the close of the whole case because the competent evidence was insufficient to support a verdict against said defendant. We think this contention of defendant should be sustained. Therefore, it will be unnecessary to consider the other points relied on by the defendant.

In determining whether the trial court erred in failing to sustain the defendant's motion for a directed verdict, we will state the facts and circumstances favorable to plaintiff as shown by the evidence and give to plaintiff the benefit of all reasonable inferences which may be fairly drawn therefrom. We shall disregard defendant's evidence, unless it aids the plaintiff's case. Price v. Nicholson, Mo., 340 S.W.2d 1, 4, 5; Johnson v. Missouri-Kansas-Texas Railroad Company, Mo., 334 S.W.2d 41, 42; Thaller v. Skinner & Kennedy Company, Mo., 315 S.W.2d 124.

In reviewing this contention that plaintiff failed to make a submissible case, we confine ourselves to the issues submitted in plaintiff's Instruction No. 1, which we will set out later, and determine whether the evidence offered was sufficient to make a submissible case under the theory of liability submitted. Thaller v. Skinner & Kennedy Company, supra; Blankenship v. St. Joseph Fuel Oil & Mfg. Co., 360 Mo. 1171, 232 S.W.2d 954; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, l.c. 95.

Defendant admitted that he was the owner of the property known as Grants Farm. While defendant seems to assert that the evidence is insufficient to show that he is the operator of the amusement and show facilities conducted on said Farm, we will, for the purpose of our discussion in connection with the contention raised by defendant, assume that he operated the facilities and that all of the employees thereon and referred to in the evidence were under his supervision and control.

Grants Farm consists of a zoo wherein is displayed various animals, some of which by nature are designated as wild and some of which are designated as naturally tame. In addition, there seems to have been a park area and a carriage house where types of carriages and transportation vehicles of ancient vintage and of another age were on display. Among the animals displayed, with which we are concerned in this case, were two elephants and six miniature mules. The mules were attached and hitched to a small wagon or cart which was silver in color and had wheels which were described as having small spokes and instead of rubber tires, had a steel band around the outside of each wheel between three and four inches in width. Plaintiff's evidence showed that these mules did not wear blinders which would serve the purpose of reducing the area visible to the mules.

On June 30, 1960, at approximately 1 P.M., the plaintiff, no doubt in a state of high expectancy and joy, which was later to be changed by misfortune, in the company of a relative and some twenty other persons of the Kempt Drive Improvement Association visited Grants Farm. Prior to this date the secretary of the improvement association had procured permission for the group to attend and visit Grants Farm. The evidence does not show with whom the secretary made these reservations or obtained this permission but does show that an entrance permit was necessary for an escorted tour around the grounds. There was no admission charge made. Approximately 200 people were in attendance that day, most of whom were children, and it appears upon reaching Grants Farm that the group plaintiff was with was escorted to a miniature train, on which they were taken for a ride through the park to an animal display. After viewing the animals, the group was then taken to the carriage house and from the carriage house they were escorted into a sort of courtyard in which there was a concession stand. It seems that the plaintiff had some refreshments at this stand for which no charge was made. When the group got off of the miniature train and was in line preparatory to entering the coach house where the coaches were on display, the miniature mules, heretofore described, hitched to the wagon, were standing in the courtyard. These miniature mules were variously described by the witnesses as horses, little horses, and donkeys. One of the ladies in plaintiff's group said that while she was waiting to get into the coach house saliva was coming from the mouth of the 'front horse.' It appears that the day was very hot. After the group went through the coach house and had refreshments and came out into the courtyard, someone in the group suggested taking a picture of the children. The children were placed alongside of the little wagon, heretofore described, in order to have the picture taken. Shortly after the picture was taken by a member of the improvement association group, the elephant trainer, an employee at Grants Farm, brought two elephants into the courtyard from the stable through a doorway in front of the mules and wagon, the larger of the elephants being six to seven feet tall. This doorway to the stable was 5 or 6 feet in front of the mules and, therefore, the elephants passed no more than 5 or 6 feet in front of them when they were standing in the courtyard. One of plaintiff's witnesses testified that the elephants were snorting and making noises and throwing up their trunks as they came out. Various descriptions were given by plaintiff's witnesses as to what happened thereafter. However, the substance of their testimony is that the miniature mules bolted and ran and in doing so one of the mules steped on plaintiff and one wheel of the wagon passed over plaintiff's leg inflicting a substantial injury.

The courtyard where the incident took place was described as being large and the size of the crowd of people, as heretofore stated, was about 200 in number. Most of them were children. Some of the people were in the coash house, some were at the concession stand and others were at various places in the courtyard. As one witness said, 'everyone was scattered all around.' Plaintiff was encouraged by the relative who had accompanied her to have her picture taken with the improvement association group. This relative of plaintiff testified that the crowd was very orderly.

Edgar J. Miller testified in plaintiff's case as an expert in the care and handling of horses. He was 31 years of age and at the time of his testimony he had been employed at the Daniel Auto Sales. It is unnecessary to detail his testimony in connection with his experience and background in the care and handling of horses, except to point out that he admitted he had never 'examined, trained, raised, bought, owned or sold miniature mules,' but did say that he had experience with other mules. When asked his opinion about the temperament of a mule, a miniature mule or horse, he answered: 'Generally speaking, they are similar in nature. Some are more docile than others because of care, but I think a mule has a reputation of being more docile than a horse, but at the same time more stubborn. But generally speaking their natures or excitabilites are the same.' He said he would not approach the care and handling of a horse in any different way than he would a mule but would handle and care for both animals in the same way.

In a hypothetical question propounded to him in which he was asked to assume some of the circumstances surrounding the miniature mules at the time they bolted, he was asked to further assume, 'that while stopped and posed elephants suddenly appeared making noises and coming very near to the place where the animals were standing, and assume further that there were noises made from the large crowd, and assume further that these horses bolted and ran forward, pulling the wagon, * * *. Can you state in your opinion under the circumstances of your experience whether such hourses would be prone to be highly nervous, excitable, and have a propensity to bolt, and further whether a person experienced in handling horses and teams of horses and maintaining such horses should and could have known such condition of the animals?' He answered, 'With all these circumstances that are cited, one should know or expect the animals to react in an unpredictable manner, and any one of these circumstances or the combination of several or all would cause something like this to happen, or even other combinations or other circumstances. * * * Q. From your experience in handling horses individually or in teams, is the nature of horses such that they are excitable and with propensities to act unpredictably? * * * A. Well, they have a propensity to act unpredictably only insofar as there are unusual circumstances. Any change of a common flow of noise or actions--they would have a propensity to...