Saldi v. Brighton Stock Yard Co.

• Decision Date: 05 April 1962
• Citation: 344 Mass. 89,181 N.E.2d 687
• Parties: Antoinette SALDI, Executrix, v. BRIGHTON STOCK YARD COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 687

181 N.E.2d 687

344 Mass. 89

Antoinette SALDI, Executrix, v. BRIGHTON STOCK YARD COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 7, 1961.

Decided April 5, 1962.

Edward J. Barshak, Boston (Bertram A. Sugarman, Boston, with him), for plaintiff.

David H. Fulton, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and SPIEGEL, JJ.

WHITTEMORE, Justice.

The plaintiff had verdicts against the corporate defendant (Brighton) on court 1 (negligence) and on count 3 (nuisance) for injuries to her testate (Saldi) caused on June 7, 1954, by a cow which had escaped from Brighton's stockyard on Guest Street in the Brighton district of Boston. A verdict was directed under count 2 for the individual defendant, George McGovern, who, we assume, had been sued as the alleged owner of the cow. The case is here on Brighton's bill of exceptions.

The jury could have found facts as stated in this and following paragraphs. Brighton maintained the stockyard for the sale and purchase of cows which had ceased to be milkers and were bought to be taken away for slaughter. Brighton stationed an employee at its scales and was paid by the seller for the service of weighing each cow sold. In the usual course of business a farmer delivering a cow or cows for sale would drive his truck from Guest Street northerly onto the defendant's premises, unfenced on Guest Street, and to the rear thereof where he would back his truck against a 'loading in' platform one hundred feet long and eight feet wide which stood in front of receiving pens. Having placed his truck opposite a gate barring one of six openings into pens, the farmer would swing the gate so as to extend it across the platform nearly to the truck; he would also extend across the platform a like gate which, hinged to a post at the other side of the opening, had been swung back against the pen fence. The gates were seven to seven and one half feet long and extended nearly to the back of the truck. The farmer would then drop the tailgate of his truck and prompt the cow or cows to walk across the platform in the lane made by the two gates and down a ramp into the pen. No employee of Brighton was stationed at the platform. The gates in place to form the lane were not fastened and there was nothing to prevent these gates, or at least one of them, 'being swung closed so that the cow could get on the platform and go right off the platform back to where the truck was.' 'The remaining areas where the cattle are' are fenced. The 'loading out' platform at the front of the rows of pens, on Guest Street, was not described. Brighton weighed from 150 to 300 cows each day.

The cow which injured Saldi was first seen, out of control, by someone who shouted that a cow was loose; McGovern, who was unloading another cow, looked up and saw the escaped cow going away from the platform at a point two or three feet distant therefrom and a like distance from his truck. Other trucks were in place at the platform. McGovern, as soon as he had unloaded his cow, took up the chase in his truck. The escaped cow went westerly out of Brighton's yard and, about 440 yards therefrom, near the corner of Guest and Market streets, on private property, she butted Saldi who was at work for his employer in the construction of a substation for the Boston Edison Company. The cow was thereafter pursued by the police and shot.

For years there had been no fence to Brighton's premises along Guest Street although seventeen to twenty years earlier, 'before they changed the buildings,' there had been a fence with a gate and watchman.

Cows had escaped from the premises on prior occasions. McGovern knew of some escapes; he had helped to bring cows back. Brighton's president, connected with the corporation since 1936, knew of possibly five occasions of escapes since that date; 'sometimes * * * [the cows] had to be corralled by the police'; the escapes on most of these occasions had been 'from the unfenced area i. e. the platform.' Joseph L. Conroy, a police officer, prior to 1954 had been stationed at the Brighton Station, Division 14, for seven years, for four years of which he had been on the day shift. He had had personal experience with escaped cattle in the Market and Guest street area on four occasions including the escape on June 7, 1954. In the fall of 1946 five escaped at one time. To 'the best of his knowledge' the escaped cattle came from the stockyard. About three quarters of a mile away was a slaughter house and abattoir which was fenced on all sides except along the river. He had no knowledge of escapes from the abattoir. Officer Francis J. Handren had knowledge of one other animal 'that escaped during that year [1954].' Officer Arthur Ginnetty, attached to the division for seven years prior to June 7, 1954, had 'cases with cows or bulls in that area before' that date; he 'had one other and another officer.'

The police in the Brighton division use shot of heavier gauge 'specially designed for these animals.' The records of use of shot on animals was referred to unofficially by the officers of the division as the 'cowboy record.'

Brighton's president, when asked if Brighton could have built additional fences on the platform answered: 'And not do business.' When asked what Brighton did to prevent escapes, he answered: 'We provide the facilities for the farmers to unload at but we take no part in the unloading.'

1. There was a basis of liability in the evidence. ¹

In cases of escaped domestic animals 'the measure of the plaintiff's rights and the defendant's duties is the common rule of due care.' Carrington v. Worcester Consol. St. Ry., 222 Mass. 120, 109 N.E. 828. O'Connor v. Hickey, 260 Mass. 110, 156 N.E. 840. Texeira v. Sundquist, 288 Mass. 93, 94-95, 192 N.E. 611. Woodman v. Haynes, 289 Mass. 114, 116-117, 193 N.E. 570. The rule applies whether the accident is in the public way (see cases last cited) or on private property owned by the plaintiff, Lyons v. Merrick, 105 Mass. 71, 76; Walker v. Nickerson, 291 Mass. 522, 525, 197 N.E. 451, or by another, Baker v. Ratkiewicz, 275 Mass. 174, 179-180, 175 N.E. 635. ² It is unnecessary to show that the animal had vicious traits. Lyons v. Merrick, supra. Walker v. Nickerson, supra. Action by the animal in accordance with its natural propensities is foreseeable and some control to prevent this is required. Woodman v. Haynes, supra (unattended horse).

The jury could have found that there was a risk that an escaped cow, even if 'superannuated,' as Brighton's brief suggests, in the strange environment of city streets, pursued or not, would be sufficiently disturbed to indulge the known propensity of her kind to butt. Lyons v. Merrick, supra (escaped cow). O'Connor v. Hickey, supra. Baker v. Ratkiewicz, supra (hobbled horse, likely to 'flare up'). Woodman v. Haynes, supra.

Brighton contends that these principles are inapplicable because it was not shown to be in control of the cow. See Lyons v. Merrick, supra, 105 Mass. p. 76 (a 'person who in * * * place [of the owner] * * * has the exclusive * * * control'). In the circumstances, however, neither exclusive nor immediate control was required for another principle was also applicable. 'A possessor of land is subject to liability for bodily harm to others outside the land caused by an activity carried on by him thereon which he realizes or should realize as involving an unreasonable risk of bodily harm to them under the same conditions as though the activity were carried on at a neutral place.' Restatement: Torts, § 371. Harper and James, Torts, § 27.19. See also Restatement 2d: Torts, Tent. draft no. 4, 1959, § 318: 'If a third person used land or chattels in the actor's possession, the actor is under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others, or from creating an unreasonable risk of harm to them, if the actor (a) knows or has reason to know that he has the ability to control the third person, and (b) knows or should know of the necessity and opportunity for exercising such control.' In respect of the omission of the words 'if present' as applied to the actor, which appear in § 318 as now written, a note says 'The actor's presence is certainly not indispensable, and goes only to his knowledge of the activity, and his opportunity to control it.'

The jury could have found that Brighton was conducting its business without taking reasonably necessary precautions to prevent escapes and that the risk of escape, known to Brighton, was inherent in the construction and operation of the loading in platform. They could have found also that absence of reasonable precautions permitted the escape of the cow which butted Saldi. The inference was warranted that the escape occurred at the platform while cows were being delivered from the confinement of trucks to the confinement of pens and while both trucks and pens were open to insecurely fenced lanes of passage. There is no suggestion of occasion for freeing cows at or near the platfrom except for passage across it to a pen. Furthermore, the conclusion was warranted that there was sufficient risk of escape in the way the business was conducted on the premises to make reasonably necessary a fence and gate on Guest Street.

It was a reasonable inference that further precautions were feasible. The jury were not obliged to conclude that provision for dropping bolts or engaging hooks at the ends of the platform gates, or a requirement of opening the closing a gate in a street fence, would have put Brighton out of business. There is no principle that an adverse effect on business would justify the omission of precautions. Brighton's responsibility was not extinguished by the possibility or likelihood that an invitee's carelessness contributed to the escape.

The decision in Creeger v. Springfield Rendering Co., 293 Mass. 541, 200 N.E. 352,...