Slaughter v. Sweet & Piper Horse & Mule Co.

• Decision Date: 11 February 1924
• Docket Number: No. 14944.,14944.
• Citation: 259 S.W. 131
• Court: Missouri Court of Appeals
• Parties: SLAUGHTER v. SWEET & PIPER HORSE & MULE CO.

259 S.W. 131

SLAUGHTER v. SWEET & PIPER HORSE & MULE CO.

No. 14944.

Kansas City Court of Appeals, Missouri.

February 11, 1924.

Rehearing Denied March 3, 1924.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

"Not to be officially published."

Action by Stephen D. Slaughter against the Sweet & Piper Horse & Mule Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Mosman, Rogers & Buzard, of Kansas City, for appellant.

Atwood, Wickersham, Hill, Levis & Chilcott, of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff, a buyer, feeder, and shipper of mules, was attending an auction of such animals, conducted by the defendant in an auction room furnished by the Kansas City Stockyards Company, and, while so in attendance upon said auction for the purpose of buying, he was run down, stepped upon and severely injured by a mule which had been or was being offered at auction. He brought this suit for damages alleging that his being run down and trampled was caused by negligence in the respects hereinafter stated. A jury returned a verdict of $3,180 against the defendant, and it prosecutes this appeal.

The defendant, as has already been suggested, sells mules at auction on commission, and uses an auction room in the stockyards provided for it by the Kansas City Stockyards Company. The latter delivers the mules into the auction room and assists in the display of said mules therein and in taking them from the room.

Originally, the suit was against not only the defendant, but also the Kansas City Stockyards Company. Immediately preceding the trial, however, the Stockyards Company and plaintiff entered into the contract hereinafter mentioned, and, pursuant thereto, plaintiff dismissed as to the Stockyards Company and proceeded against the present defendant alone.

The auction room is rectangular, being somewhere about 50 feet in length north and south and perhaps 6 or 8 feet less than that in width east and west. Running along the west side of the room are two tiers of seats the lower of which is about 5 feet above the floor, and in front of this tier is a railing or fence about 5 feet high. The auctioneer's stand is on the east side of the room about the center thereof and is elevated some 5 or 6 feet above the floor. At the time of the injury, this stand was occupied by the auctioneer, the clerk of the sale, and also one of the members of the defendant company.

The evidence in plaintiff's behalf tends to show that, when an auction was being held, it was customary for the prospective buyers to stand around on the floor of the room where they could get a better view and inspection of the mules as they were brought into and driven around the room for inspection. A buyer seldom stood anywhere else than on the floor, and the evidence is that it was impracticable to sit 5 or 6 feet above a mule, as one would not be able to tell very much about him. The mules were usually brought in one at a time, foot loose and without halter, and driven around the room so the prospective buyers could look the animal over. At the time of the plaintiff's injury, there were about 30 buyers standing about the room, and among them was plaintiff. He had bid on a mule or two, but his bids were not accepted, and he was waiting to make future bids should he find a mule he desired to purchase. About 30 or 40 mules had been brought into and taken out of the room before the one that injured plaintiff came in.

Plaintiff's evidence further tends to show that he was standing near the auctioneer's stand; that he had been talking to a fellow buyer before the mule which did the injury came in, but not during the time the mule was in the ring; that he was facing east and was not in the front line of bidders, though he had been when he had made the bids above mentioned; that he was standing there watching the market and looking for mules to come in that he would be interested in bidding on; that there were two employés of defendant who stood, one at the south end and the other at the north end of the room, and each had long leather whips. These men caused the mules to move about the room or go from one end of the room to the other, and it was the duty of these men to keep the mules moving and exercise them up and down the ring.

The evidence is further that when the particular mule in question entered the room he was started toward the north end of the room where the other employé with whip in hand attempted to turn him back. The mule did not turn as readily or quickly as the employé desired and he began beating him hard and when the mule turned south the employé followed him beating him as he went. The evidence is that when it went back south the employé there struck it over the head and joined in the beating. It is not very clear how many times the mule went back and forth, but the last time it came back from the north it was wildly excited and was being beaten by both men, when it suddenly "whirled, headed west," and "just bolted right through the crowd" like "it didn't give a dumaree where it went." The mule knocked plaintiff down and stepped on his face, severely injuring him. The evidence is that both men were whipping the mule when he got opposite where plaintiff was standing; that the moment plaintiff apprehended danger to himself he tried to get away or save himself.

There is evidence that the men beat the mule "inhumanely"; that they gave him "a whale of a beating" and struck him very hard. Several witnesses testified to this, and a disinterested witness, one of the buyers standing on the floor at the time, said that both of the men were whipping the mule, one on one side and the other on the other, "and the mule couldn't do anything else, only come into the crowd." The part that the mule "couldn't do anything else" was stricken out by the court. Whereupon the witness said that one of the men was whipping the mule from the south and the other from the north and then the mule turned to the west or northwest, threw up his head, and "bolted into the crowd."

There is also evidence that it was not necessary to beat a mule like this one was beaten in order to properly conduct the auction; that it was customary in other auctions to have railings in the ring which would afford protection, and such railings did not interfere with the proper conduct of the business; and that this knowledge was gained through an experience of 20 years in visiting the various auctions throughout the country. There is evidence also that, when the mule showed fright from the lashing he was getting, the men standing in the ring tried to get out of the way, but plaintiff did not succeed in doing so. Plaintiff testified he never knew a mule to break through or run into a crowd except when it was being mismanaged or had received unusually rough treatment, and the evidence shows that while the mule was a little nervous when it entered the ring it did not become obstinate or unruly, or wild with excitement, until caused to do so through the whipping.

Plaintiff lost consciousness when the mule knocked him down. The mule was shod, and when it stepped on plaintiff's face, plaintiff was cut above the right eye. His cheek was cut through to and into the palate and perhaps through that, and his upper lip was also cut in two. He received, besides these, other bruises about the body. It is perhaps needless, however, to go into the very serious and painful nature of the injuries plaintiff received, since there is no point made that the verdict is excessive. But defendant does urge that in the amount plaintiff received from the Stockyards Company, he obtained full compensation for his injuries, and for this "reason we have stated, to the degree above indicated, the seriousness of his hurts.

The petition, drafted to apply to both of the original defendants, charged:

That defendants—"negligently and carelessly and with joint negligence and in violation of their duty to plaintiff and the public so to do failed to provide any railings, shields, barriers, safeguards or any other reasonably safe or reasonably sufficient means or methods of separating the public from said live stock and from the animal which injured plaintiff, as herein set out, although it was feasible and praticable and inexpensive so to do, and defendants by using ordinary care could have so done." That "defendants and their servants and agents negligently and carelessly and with joint negligence caused and permitted a certain mule to be turned into said room and turned loose therein without being tied or haltered or in any manner secured, although plaintiff and a large number of persons were in said room at said time as spectators and prospective bidders as aforesaid, and although it was feasible and practicable and inexpensive for defendants to have used said precautions and so done and defendants could have so done by using ordinary care." That "defendants and their servants and agents negligently and carelessly and with joint negligence caused and permitted said mule to become greatly frightened and exercised and to run and cavort and run loose and unattended in said room and with joint negligence by means of a whip and by the waving of hands and by shouting and by other exciting methods made and caused said mule to run and move swiftly and excitedly and at high speed around and about said room and near said unprotected spectators and prospective bidders and members of the public in eluding plaintiff; and plaintiff states that by the jointly negligent acts and omissions of defendants and their servants and agents as herein set out the safety of plaintiff and said other persons was menaced and they were placed in great and imminent danger...