Simmons v. Kansas City Jockey Club

• Citation: 66 S.W.2d 119
• Decision Date: 06 December 1933
• Docket Number: No. 30850.,30850.
• Parties: CARLTON SIMMONS, <I>pro ami,</I> Appellant, v. KANSAS CITY JOCKEY CLUB.
• Court: United States State Supreme Court of Missouri

66 S.W.2d 119

CARLTON SIMMONS, pro ami, Appellant, v. KANSAS CITY JOCKEY CLUB.

No. 30850.

Supreme Court of Missouri.

Division One, December 6, 1933.

Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.

REVERSED AND REMANDED (with directions).

Clay C. Rogers, Mosman, Rogers & Buzard and Louis N. Wolf for appellant.

(1) The charge in the instruction that "if you further find that defendant negligently and carelessly, if so, failed to keep and maintain the gap or gate in question closed or barred at and during the race" is equivalent to a charge requiring the jury to find that the defendant knew or by the exercise of ordinary care should have known that the gate or gap was open. Messing v. Judge & Dolph Drug Co., 18 S.W. (2d) 418; Kamer v. Railroad Co., 32 S.W. (2d) 1082; Hulsey v. Tower Grover Quarry Co., 30 S.W. (2d) 1028; Morton v. S.W. Tel. & Tel. Co., 217 S.W. 831; Davis v. Buck's Stove & Range Co., 49 S.W. (2d) 50. (a) There was sufficient proof that defendant knew or by the exercise of ordinary care could have known that the gate or gap was open, and that it had an opportunity to remedy the situation before plaintiff was hurt. English v. Sahlender, 47 S.W. (2d) 153; Crawford v. K.C. Stock Yards Co., 215 Mo. 394, 114 S.W. 1063; Kennedy v. Phillips, 319 Mo. 573, 5 S.W. (2d) 33; Bodenmueller v. Columbia Box Co., 237 S.W. 879; Davis v. Buck's Stove & Range Co., 49 S.W. (2d) 49; Steinke v. Palladium Amusement Co., 28 S.W. (2d) 442; McClain v. Lewiston Interstate Fair & Racing Assn., 104 Pac. 1015. (b) The charge in the instruction that defendant negligently failed to keep and maintain the gate or gap in question closed or barred "at and during" the race, is not broader than the petition, for the reason that the petition alleges that the defendant not only negligently permitted the gate to be unbarred in said fence "before" the race started, but also "while" the race was in progress. R.S. 1929, sec. 821; Talbert v. Ry. Co., 15 S.W. (2d) 763. (c) The charge in the instruction requiring the jury to find that defendant knew or in the exercise of ordinary care should have known that the horse plaintiff was riding in said race "would or might" be inclined to bolt through a gate or gap if left open and unbarred, does not submit matters of speculation and conjecture. Roy v. Kansas City, 204 Mo. App. 132, 224 S.W. 132; O'Keefe v. United Rys., 124 Mo. App. 613, 101 S.W. 1144; Nelson v. Boston & M. Consol. Copper Co., 88 Pac. 786; Scott v. Shine, 194 S.W. 969.

Paul C. Sprinkle and Inghram D. Hook for respondent.

(1) The court did not have jurisdiction. The court erred in overruling the defendant's general demurrer at the close of plaintiff's evidence. The court erred in overruling defendant's general demurrer at the close of all the evidence. The court erred in refusing defendant's Instruction K. Macklin v. Construction Co., 31 S.W. (2d) 14; Smith v. Kansas City Pub. Serv. Co., 43 S.W. (2d) 548; Workmen's Compensation Act, Sec. 3374; Baker v. Scott Co. Milling Co., 20 S.W. (2d) 497; Barlow v. Shawnee Inv. Co., 48 S.W. (2d) 47; Biskup v. Hoffman, 287 S.W. 865; Wainwright v. Westborough Country Club, 45 S.W. (2d) 92; Workmen's Compensation Commission of Mo., decided April 11, 1931; Claremore Country Club v. Industrial Accident Comm., 163 Pac. 211; Employers' Liability Assur. Corp. v. Industrial Accident Comm., 267 Pac. 922; Indian Hills Golf Club v. Industrial Commission, 140 N.E. 26; Gaines v. Baird, 22 S.W. 570; Boyle v. Mahoney and Tierney, 103 Atl. 127; Hinds v. Department of Labor & Industries, 272 Pac. 734; Chicago & Interurban Traction Co. v. Industrial Board, 118 N.E. 464; Gaiety Theatre Co. v. Mary Rockwell, 1 Cal. Ind. Acc. Com. 111; Howard v. Republic Theatre, 2 Cal. Ind. Acc. Com. 514; Walker v. Crystal Palace Football Club, 3 British W.C.C. 53, 1 King's Bench 87; Workmen's Compensation Act, Sec. 3308-A; Pruitt v. Harker, 43 S.W. (2d) 771; Simpson v. New Madrid Stave Co., 52 S.W. (2d) 615; Berberet v. Electric Park Am. Co., 3 S.W. (2d) 1030. (2) Instruction No. 1 was erroneous. Messing v. Judge & Dolf Drug Co., 18 S.W. (2d) 408; Kamer v. Railroad Co., 32 S.W. (2d) 1075; Hulsey v. Quarry Co., 30 S.W. (2d) 1018; Morton v. S.W. Telegraph & Telephone Co., 217 S.W. 831; Davis v. Buck's Stove & Range Co., 49 S.W. (2d) 47; Popejoy v. Brick Co., 186 S.W. 1133; Midwest Natl. Bank & Trust Co. v. Davis, 233 S.W. 406; Spinnell v. Goldberg, 275 S.W. 775; Stegeman v. Packing Co., 2 S.W. (2d) 169; Keyes v. Ry. Co., 31 S.W. (2d) 50; Berberet v. Electric Park Amusement Co., 3 S.W. (2d) 1025; Kennedy v. Phillips, 5 S.W. (2d) 33; Sanders v. City of Carthage, 51 S.W. (2d) 529; English v. Sahlender, 47 S.W. (2d) 150; Crawford v. K.C. Stock Yards Co., 114 S.W. 1057; Kennedy v. Phillips, 5 S.W. (2d) 33; Bodenmueller v. Box Co., 237 S.W. 879; Steinke v. Palladium Am. Co., 28 S.W. (2d) 440; Wojtylak v. Coal Co., 87 S.W. 506; State ex rel. Long v. Ellison, 199 S.W. 984; Smith v. Bridge Co., 30 S.W. (2d) 1077; Macklin v. Fogel Const. Co., 31 S.W. (2d) 14; Blackwell v. Ry. Co., 52 S.W. (2d) 814; Wecker v. Ice Cream Co., 31 S.W. (2d) 974. (3) The trial court erred in giving plaintiff's Instruction 2. Burgess v. Garvin, 272 S.W. 112; Baker v. Scott Co. Milling Co., 20 S.W. (2d) 498; Clayton v. Wells, 26 S.W. (2d) 972. (4) The verdict in excessive. Stottle v. C.R.I. & P. Ry. Co., 18 S.W. (2d) 438; Brown v. C.R.I. & P. Ry. Co., 286 S.W. 45; Oglesby v. St. Louis-S.F. Ry. Co., 1 S.W. (2d) 172; Shaw v. Railroad Co., 282 S.W. 416; Merb v. St. Louis Merchants Bridge, etc., Ry. Co., 252 S.W. 370; Pope v. Terminal Railroad Assn., 254 S.W. 43; Hunt v. C.B. & Q. Ry. Co., 259 S.W. 481; Willgues v. Railroad Co., 298 S.W. 826; Van Loon v. St. Louis Merchants Bridge Term. Ry. Co., 6 S.W. (2d) 591; Westover v. Wabash, 6 S.W. (2d) 849; Mallory v. Louisiana Pure Ice & Supply Co., 6 S.W. (2d) 627; Hutchcraft v. Laclede Gas Light Co., 282 S.W. 38; Foster v. Davis, 252 S.W. 433; Woods v. St. Louis Terminal, etc., Ry. Co., 8 S.W. (2d) 922; Skinner v. Davis, 271 S.W. 994; Trowbridge v. Fleming, 269 S.W. 610; Shannon v. K.C.P. & L. Co., 287 S.W. 1031; Rettlia v. Salomon, 274 S.W. 366; Brock v. C.R.I. & P. Ry. Co., 266 S.W. 691; Boyer v. Railroad Co., 293 S.W. 386.

FRANK, P.J.

Action by plaintiff, appellant here, to recover damages for personal injuries. Verdict for plaintiff in the sum of $32,000. On motion of defendant, the court set the verdict aside and granted a new trial. Plaintiff appealed.

Plaintiff's petition, among other things, alleges the following facts:

"Now comes the plaintiff by his next friend, Paul A. Buzard, who had been duly appointed as such to prosecute this suit in the name of and on behalf of the plaintiff, and for his cause of action the plaintiff states that he is a minor seventeen years of age and at all times in question has followed the occupation of a jockey and plaintiff states that the defendant is a corporation duly organized and existing according to law and engaged in the business of maintaining and operating horse racing exhibitions and during all of the times herein mentioned, it has owned and operated a horse racing track at or near Smithville, Missouri.

"Plaintiff states that on the 31st day of August, 1927, he was engaged by one Ben Keller, to ride in a horse racing exhibition which was on said date held and maintained on the track of defendant company at said place, and plaintiff states that at said time there were a number of horses in said race and that while plaintiff was riding a horse known and called Anmeter, and owned by the said Ben Keller, the said horse bolted and was by and through the carelessness and negligence of the defendant as hereinafter more specifically set out, caused, permitted or allowed to run through an opening or gap in the fence around said track, whereby plaintiff was caused to be thrown from said horse and seriously, grievously, and permanently injured and crippled.

"The defendant operated and maintained the race track at the place in question and on each side of the track there had been built and constructed a fence between which said fences the horses were raced. The outer fence was so constructed that at various places gaps or gates were left in said fence and said gaps or gates were usually or customarily closed by bars or gates so as to prevent the racing horses from leaving the track and going through the gaps or gates, and plaintiff states that it is the well known propensity, tendency, or inclination of race horses to bolt from the track and leave the same through any gate or opening in the fence, and plaintiff states that said propensity, tendency, or inclination and conditions were at and before the time plaintiff was injured, well known to the defendant and that because of the likelihood of race horses to bolt through an open gate or gap, the duty was upon the defendant to keep barred and closed said gates and gaps so as to prevent race horses from bolting from said track, but plaintiff states that the defendant in violation of its obligation and duty to the plaintiff negligently and carelessly permitted a gate or gap to be open and unbarred in said fence before the time the race started and while the race in which plaintiff was injured was in progress, and that by reason and because of the negligence and carelessness of the defendant aforesaid, and while plaintiff was riding said horse in the race aforesaid, the said horse upon reaching said unbarred and open gate or gap in said fence bolted from the track and went through said gate or gap and threw plaintiff against and upon a post in said fence and the adjacent ground with such force and violence as to cause him to be injured in the manner aforesaid."

Defendant's answer pleads (1) a general denial, and (2) that plaintiff was in the employ of defendant, and that both plaintiff and defendant were subject to and operating under the Workmen's Compensation Act of Missouri, and that plaintiff's rights,...