State v. Daues

Decision Date31 December 1926
Docket NumberNo. 27457.,27457.
PartiesSTATE et rel. PEVELY DAIRY CO. v. DAUES et al, Judges.
CourtMissouri Supreme Court

W. E. Moser and john S. Marsalek, both of St. Louis, for relator.

Mark D. Eagleton, Everett Hullverson, and Harry S. Rooks, all of St. Louis, for respondents.

RAGLAND, P. J.

This is an original proceeding in certiorari wherein relator seeks to quash a judgment and an opinion of the St. Louis Court of Appeals because of an alleged conflict with decisions of this court. The cause in which the record is brought here for review was an appeal from the circuit court of the city of St. Louis, entitled: Oscar Williams, Respondent, v. Pevely Dairy Company, a Corporation, Appellant. The opinion of the Court of Appeals disposing of the appeal follows (285 S. W. 149):

"This is an action for damages for personal injuries sustained by plaintiff while employed by defendant as a hostler in defendant's stable. Plaintiff recovered a verdict and judgment for $7,500, and defendant has appealed.

"The petition alleges: That plaintiff was kicked by a mule owned and used by defendant in the dairy business. That the mule was mean, vicious, and unruly and likely to kick and injure persons, which fact the defendant knew, or by the exercise of ordinary care should have known. That on May 5, 1924, plaintiff, while engaged in his duties as an employee in the stable, was kicked and injured by said mule. Defendant's negligence is alleged as a failure to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work or with a reasonably safe mule at and near which to work. That the mule had mean propensities and was not reasonably safe. Second, a negligent order of defendant which required plaintiff to be around the mule, and that defendant negligently assured plaintiff that he could work there with reasonable safety to himself, although defendant knew, or should have known, that said mule was dangerous and likely to kick. Third, that defendant permitted the mule to occupy an open stall, when a closed stall was near by and which could have been used for that purpose. Fourth, defendant's failure to warn plaintiff of the disposition of the mule and the dangers incident thereto. Fifth, defendant negligently failed to exercise ordinary care to discover the disposition and propensities of the mule, and that he was dangerous and not reasonably safe.

"The answer is a general denial.

"The case was submitted to the jury on the allegations that defendant furnished a mule which was unsafe because it was unruly and possessed a disposition to kick, and negligently kept the mule in an open stall instead of a box stall.

"The facts may be briefly stated, taking them from the record as appear most favorable to the verdict:

"Plaintiff, a man about 35 years of age, while employed by defendant as a hostler in its stables in the city of St. Louis, was seriously injured by the kick of a mule on May 5, 1924. The mule, called `John,' was brought to the stable of defendant about ten days prior to the day of the accident. The first few days after the mule's arrival at the stable, he was kept in a box stall about 14 feet square, which was inclosed all around with a door leading to the aisle. The mule was sick when he was brought to the stable and was placed in the box stall so that he could be taken care of better. It was necessary to administer medicine to the animal, and this was done by others assisted by plaintiff. From the very beginning it was noticed, according to plaintiff, that the mule acted differently from the average mule, in that he would wheel around and kick if one came close to him. There is evidence that this viciousness was observed in the mule during the entire time he was in the stall. Plaintiff said the mule had kicked at him some six or seven times previous to the time he was injured, and that the mule did this notwithstanding the fact that its physical condition seemed to be getting better. On this occasion plaintiff was passing through the aisle of the stable when the mule backed out of a straight stall and kicked him. There was evidence to show that the mule was not an average mule, but was ill-tempered and would kick, though there was much evidence on the part of defendant directly to the contrary, and while defendant's witnesses said the mule was a docile animal, one of defendant's witnesses who said he was an expert on the subject of mules, conceded that a mule who would kick six or seven times in a period of ten days would be considered a vicious mule and would be unsafe. And though, as we have already said, there is much evidence on the part of defendant that the mule was not vicious but was a gentle specimen, only rebellious when forced to take medicine, there is proof of a substantial character on the part of plaintiff to sustain the inference that the mule was vicious and unruly.

"The injury was most serious. Plaintiff sustained a hemorrhage of the spinal cord, paralysis of both limbs, a fracture of the spine, loss of muscle power in the ligaments of the back, and there is evidence that these injuries are of a permanent character and will disable plaintiff from ever performing any manual labor. The size of the verdict is not challenged.

"The first point made is that the court should have sustained defendant's demurrer to the evidence at the close of the whole case. It is said that the charge that the defendant negligently furnished a mule with a vicious and unruly disposition and likely to kick was not sustained by the evidence, which merely showed that the mule was sick and was naturally rebellious to the necessary and proper treatment administered.

"We must keep in mind at the outset that on the question of the nondelegable duty to use ordinary care to furnish a servant with reasonably safe instruments and appliances this embraces animate as well as inanimate things. McCready v. Stepp, 104 Mo. App. 340, 78 S. W. 671; Stutzke v. Ice & Fuel Co., 156 Mo. App. 1, 136 S. W. 243.

"Now, to determine the extent and effect of this evidence we must look to the proof most favorable to the plaintiff, and that evidence, with the fair inferences allowable, tends to show that the plaintiff was furnished with a vicious and unruly mule, and that he was injured by being kicked by said mule. The mule had kicked at plaintiff six or seven times within ten days prior to the accident, and the mule was bad and unruly during the entire ten days that defendant kept him in the stable; defendant's expert on mules conceding that a mule that would act in such manner would be deemed unsafe.

"We have the `evidence, too, that the mule was put in a box stall for the first three days, and that while in said stall no one was in danger by his kicking proclivities. While in that stall he could not back out in the aisle as he did on the occasion in question. With substantial evidence of the vicious propensities of the mule adduced, and it appearing from the proof that there was a ready means at hand to avoid...

To continue reading

Request your trial
11 cases
  • Weaver v. Mobile & Ohio Railroad Co., 32140.
    • United States
    • United States State Supreme Court of Missouri
    • November 16, 1938
    ......Chicago, R.I. & P. Ry. Co., 61 S.W. (2d) 336; Gray v. Columbia Terminals Co., 52 S.W. (2d) 809; Karte v. Brockman Mfg. Co., 247 S.W. 417; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Mansur-Tebbetts Implement Co. v. Ritchie, 143 Mo. 587, 613, 45 S.W. 641. (4) Instruction M, requested ...Wolfe v. Payne, 294 Mo. 186, affd. 263 U.S. 239; State ex rel. v. Daues, 289 S.W. 835; Rigg v. Chicago, B. & Q. Ry. Co., 212 S.W. 878; Williams v. Peavely Dairy Co., 285 S.W. 149; Gibler v. Railroad Co., 129 Mo. App. 101; ......
  • Hulsey v. Quarry & Construction Co.
    • United States
    • United States State Supreme Court of Missouri
    • September 4, 1930
    ...... ordinary care and was guilty of negligence." This court has repeatedly and uniformly ruled that a finding that defendant, under a hypothesized state of facts, therein failed to exercise ordinary care, and was guilty of negligence, is equivalent to a finding that defendant knew, or by the exercise ......
  • Hulsey v. Tower Grove Quarry & Construction Co.
    • United States
    • United States State Supreme Court of Missouri
    • September 4, 1930
    ...... This court has repeatedly and uniformly ruled that a finding. that defendant, under a hypothesized state of facts, therein. failed to exercise ordinary care, and was guilty of. negligence, is equivalent to a finding that defendant knew,. or by the ......
  • Weaver v. Mobile & O. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • November 16, 1938
    ......I. & P. Ry. Co., 61 S.W.2d 336; Gray v. Columbia Terminals. Co., 52 S.W.2d 809; Karte v. Brockman Mfg. Co., . 247 S.W. 417; State ex rel. v. Ellison, 270 Mo. 645,. 195 S.W. 722; Mansur-Tebbetts Implement Co. v. Ritchie, 143 Mo. 587, 613, 45 S.W. 641. (4) Instruction. M, ... ground for complaint on defendant's part. Wolfe v. Payne, 294 Mo. 186, affd. 263 U.S. 239; State ex. rel. v. Daues, 289 S.W. 835; Rigg v. Chicago, B. & Q. Ry. Co., 212 S.W. 878; Williams v. Peavely Dairy. Co., 285 S.W. 149; Gibler v. Railroad Co., 129. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT