Stephenson v. Corder

• Decision Date: 06 May 1905
• Docket Number: 14,146
• Parties: CHARLES N. STEPHENSON v. TERRA CORDER
• Court: Kansas Supreme Court

80 P. 938

71 Kan. 475

CHARLES N. STEPHENSON v. TERRA CORDER

No. 14,146

Supreme Court of Kansas

May 6, 1905

Decided January, 1905.

Error from Sumner district court; CARROLL L. SWARTS, judge.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

PERSONAL INJURIES--Runaway Team--Proximate Cause. A farmer drove a team of eleven-year-old horses seventeen miles, hauling a wagon loaded with about a ton's weight and hitched one of them (as he had been in the habit of doing frequently) to a hitching-rail in front of a store while he was engaged in unloading, going back and forth for this purpose but a short distance. The halter with which the horse was hitched was apparently in good condition and no defect therein was shown. While the team was standing quietly a boy, in turning over the hitching-rail near the head of the team, struck the nose of one of the horses with his foot, which frightened the team and caused them to break loose and run away, causing damage. Held, that the striking of the horse by the boy was the proximate cause of the accident.

Herrick & Herrick, and Ivan D. Rogers, for plaintiff in error.

Charles E. Elliott, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

This was an action to recover for personal injuries caused by a runaway team. There was no material conflict of the evidence as to the facts of the case. Mr. Stephenson was a market-gardener living about seventeen miles from the city of Wellington, to which city during the season for marketing fruit and vegetables, for the term of over twelve years, he drove two or three times a week with his loads of produce. For four years of this time prior to August 5, 1901, he drove the same team that he did upon that day. It consisted of a horse and a mare, each eleven years old. They had been raised and broken by Mr. Stephenson and used upon his farm and for road purposes. His young daughters were accustomed to drive the team, and they were considered safe and trustworthy by him. On one occasion, two years prior to the date above named, a team consisting of the mare in question and another horse, while standing unhitched in a field, became frightened at the sudden appearance through a nearby hedge of Mr. Stephenson's young daughter and ran off with a plow to which they were attached. On another occasion the same mare with another horse, becoming unhitched in some unknown way in the town of Belle Plaine, ran about a block and a half. No other instances of misconduct or viciousness by this team or either of them were shown. They were well broken and quiet, and had never been known to pull at the halter when hitched.

On August 5, 1901, Mr. Stephenson, in accordance with his custom, drove to Wellington with a load weighing from 1800 to 2200 pounds and stopped in front of a grocery store in order to unload his produce. He drove up in an angling direction toward the hitching-rail, so that, the mare being on the inside and nearest the rail, he hitched her only. The headstall of the halter with which she was hitched was made of one-and-a-quarter-inch leather; the hitching part was a rope a half-inch or more in diameter. It was a halter which he had been in the habit of using, but for how long does not appear; it was apparently in a fair condition. When he drove up he noticed some boys standing around. They not infrequently came to him to get such damaged fruit or melons as he might wish to give them, and for that purpose frequently climbed upon the hind part of the wagon.

After hitching the team he proceeded to unload his produce, passing back and forth from the wagon to the grocery. While he was in the grocery on one of these trips a boy, in turning over the hitching-rail, or, as the witness termed it, making a "flip-flop," struck the mare on the nose with his foot, frightening the team, and causing them to rear back with such force as to break the chin-strap of the halter with which the mare was hitched. The team broke loose, ran down the street and collided with a buggy in which Miss Corder was riding, threw her out, and very severely injured her. Before the boy struck the mare with his foot the team had been standing quietly. It was accustomed to being hitched in this manner and place. A verdict was returned in favor of the plaintiff below and judgment entered thereon.

Many errors are assigned, some of which might serve to reverse the judgment and remand the case for a new trial. We prefer, upon the plain facts of the case, to address ourselves to vital questions, rather than to mere matters of practice. The basis of defendant's liability, of course, was his alleged negligence in leaving his team standing insecurely hitched, or fastened. The only delinquency in this respect which can be claimed from the evidence is that the chin-strap of the halter was not sufficient, and the only evidence to support such a claim is that it broke. It may well be questioned whether under the evidence in this case the fact that it broke draws with it any presumption that the strap was so defective as to make its use under ordinary circumstances negligence. In Telephone Co. v. Vandervort, ante, page 101, where a neck-yoke strap was broken by the sidewise plunge of a frightened team, this court said:

"There is no evidence from which the jury might have found that the harness was defective, the only evidence being that of the plaintiff himself, where he said 'my harness had been used about five months, or scarcely that.'"

There was little, if anything, more shown in the case at bar.

Ordinary care is all that was required of the defendant, and ordinary care does not require that all possible means for avoiding accident should be used. Quite true, the accident would not have occurred had the horses been hitched to an unbreakable rack with an unbreakable chain; nor would it have occurred had not the defendant driven to the city on that day; but ordinary care does not require the use of such precautions. If it did, it would, in the language of this court in Cleghorn v. Thompson, 62 Kan. 727, 733, 64 P. 605, 54 L. R. A. 402, "paralyze human effort and action on all lines." What the defendant was doing at the time was what he had done many times before without injury, and apparently what he or any reasonably prudent man would have done under the circumstances. It is suggested that the fact that he saw boys about there ought to have warned him that some of them might do the thing that the boy in question did. We hardly think this suggestion can be seriously urged; certainly it cannot be seriously entertained. Nor do we see anything in the character of the team which warranted any extraordinary precaution in the matter of fastening them. Whatever of dereliction was shown was not because of their breaking loose when tied, but because the mare had run away on two separate occasions upon sufficient provocation, or otherwise. Ordinarily the team was roadworthy, being well broken and quiet, and it is shown that neither of them had ever been known to pull at the halter when hitched.

Did affirmance rest upon a sufficient showing of defendant's negligence we should greatly hesitate. The further question of the proximate cause of the injury, however, demands our attention. The jury, in answer to one of the special questions, and in exact accordance with the evidence, found that the horses were frightened and caused to run away by the boy's...