Staples v. Steed

• Decision Date: 19 November 1912
• Parties: STAPLES v. STEED.
• Court: Alabama Court of Appeals

60 So. 499

6 Ala.App. 594

STAPLES v. STEED.

Court of Appeals of Alabama

November 19, 1912

Appeal from Clay County Court; E. J. Garrison, Judge.

Action by C. L. Steed against W. D. Staples for damages for injury to a horse, causing its death. Judgment for plaintiff, and defendant appeals. Affirmed.

For a statement of facts and the pleadings in the case, see former appeal in 167 Ala. 241, 52 So. 646, Ann. Cas. 1912A, 480.

The witness Worthy was permitted to testify, over the objection of the defendant, that in Staples' presence Mr. Shumaker said to Mr. Steed, "That man is killing your horse," and Staples replied that he was running that cat.

The following are the charges referred to in the opinion, as having been refused to the defendant:

(4) "The court charges the jury that all that was required of Staples in performing the operation was to use that ordinary degree of care that reasonably prudent men of his profession would use under like conditions and surroundings and if Staples did this he would not be liable in this action, and you could not find a verdict against him until you are reasonably satisfied from the evidence that he did not exercise care."

(5) "Even though you may believe from the evidence that the operation killed the horse, still Staples would not be liable therefor, unless he was negligent in and about the operation and unless you further are reasonably satisfied from the evidence that such negligence was the proximate cause of the death of the horse."

(6) "The court charges the jury that, even though you may believe from the evidence that Staples was negligent in and about the operation on the horse, still your verdict must be for the defendant, unless you are further reasonably satisfied from the evidence that such negligence was the proximate cause of the death of the horse."

(10) "If you believe the evidence in this case, the defendant Staples was a skilled veterinary surgeon at the time he performed the operation, and that the burning process was necessary for the cure of the horse, and that the burning process was skillfully applied to the affected part of the horse."

(11) "The defendant Staples in this case can only be held liable for his own negligence, and he is not liable for the negligence of the persons who were helping control, even if such persons were negligent."

(12) "Before you can find a verdict against the defendant Staples, you must be reasonably satisfied from the evidence that a reasonably prudent and skilled veterinary surgeon would not have performed the operation on the horse in the manner in which the defendant Staples performed the same."

(13) "The defendant Staples is not being sued on the alleged warranty or guaranty of the operation, and it is immaterial as to whether or not he guaranteed or warranted the operation, he being sued only for his negligence; and if he was not negligent in performing the operation, he would not be liable, and you cannot find a verdict against him."

(14) "If you believe the evidence in this cause, you are not authorized to find from the evidence that the burning of the affected part of the horse caused his death; and even if the burning did kill the horse, Staples would not be liable for that alone."

(16) "The defendant is not liable for negligence of any person helping throw the horse, and if you find that the horse was negligently thrown by a green hand, and that Dr Staples was acting in a skillful manner, your verdict should be for the defendant."

(18) "The defendant Staples was not guilty of negligence for which he would be liable in using the English hopple method in throwing the horse."

Riddle Ellis, Riddle & Pruett, of Goodwater, for appellant.

Whatley & Cornelius, of Ashland, for appellee.

PELHAM J.

A statement of the facts and issues involved in this case will be found in the opinion and the report of the case on the former appeal. Staples v. Steed, 167 Ala. 241, 52 So. 646, Ann. Cas. 1912A, 480.

The witnesses Watts and Worthy each testified to sufficient facts showing them to be competent to testify to the proper manner or method to throw a horse without injury to the animal. A man having practical knowledge on such a subject gained from experience is qualified to testify about a matter of this nature without being shown to be a graduate or skilled veterinary surgeon, or technically learned on the subject. The witness Watts testified: "I have helped throw stock off and on for 20 years. I have seen several horses thrown. Have thrown several horses and mules." The witness further specified instances of his having personally engaged in throwing horses, and stated that he was 42 years old. This witness having testified to facts showing his competency, it was without error to permit the witness to state that he knew how to hobble and throw a horse without injuring him. The witness Worthy testified that he had seen many horses thrown; that he had helped throw horses off and on for 30 years, had lived on a ranch several years, and during this time had helped hobble and throw a great many horses. The witness then stated in detail particular experiences he had with named persons in hobbling and throwing horses. Both of these witnesses testified to facts showing their knowledge and experience on the subject, and the court in allowing each of them to answer the question, "Do you know how to hobble and throw a horse without injury?" was but following the ruling of the Supreme Court on the admissibility of this testimony as set out in the opinion in this case on the former appeal. Staples v. Steed, 167 Ala. 241, at page 644, 52 So. 646, page 647, Ann. Cas. 1912A, 480, when it was said: "The opinion of this witness [referring to the witness Worthy] as to the proper way in which to perform the mechanical part of the operation was properly received; its weight being left to the jury." The original record on the former appeal shows that the witness Worthy was permitted in the trial from which that appeal was taken to testify that the way in which that horse was thrown was not a safe way or manner in which to throw the horse, and it was this testimony of the witness that was referred to as allowing the witness "in effect to testify that the operation involved in the case on trial was negligently performed." Staples v. Steed, supra. The record on the present appeal does not contain this illegal testimony.

The statement of the witness Shumaker...