Union Stockyards v. Peeler

• Decision Date: 01 April 1931
• Docket Number: No. 1435-5645.,1435-5645.
• Citation: 37 S.W.2d 126
• Parties: UNION STOCKYARDS v. PEELER.
• Court: Texas Supreme Court

37 S.W.2d 126

UNION STOCKYARDS v. PEELER.

No. 1435-5645.

Commission of Appeals of Texas, Section A.

April 1, 1931.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Travis L. Peeler against the Union Stockyards. Judgment for plaintiff was affirmed by the Court of Civil Appeals [21 S.W.(2d) 1076], and defendant brings error.

Reversed and rendered.

Terrell, Davis, McMillan & Hall, of San Antonio, for plaintiff in error.

Perry J. Lewis, H. C. Carter, Champe G. Carter, and Randolph L. Carter, all of San Antonio, for defendant in error.

CRITZ, J.

This is a suit for damages on account of personal injuries filed by Travis L. Peeler, whom we will hereinafter designate as plaintiff, against Union Stockyards, a corporation, whom we will hereinafter designate as defendant. The suit was filed in the district court of Bexar county. Trial in the district court before the court without the intervention of a jury resulted in a judgment for the plaintiff for $5,000. The defendant appealed to the Court of Civil Appeals at San Antonio, which court affirmed the judgment of the trial court. 21 S.W.(2d) 1076. The case is in the Supreme Court on writ of error granted on application of the defendant.

Omitting immaterial parts, Peeler's petition in the trial court reads as follows:

"Plaintiff avers that the defendant, Union Stock Yards, maintains in the City of San Antonio certain pens and stock yards for the handling of stock, and on or about April 13, 1928, the plaintiff was lawfully in said stock yards, assisting in the handling of some cattle, and under the circumstances it was the defendant's duty to exercise care to see that the pens and gates were in safe and secure condition. Notwithstanding this, the defendant negligently caused and permitted one of the gates and the latch thereof, which defendant maintained in said stock yards, to be in a defective, insecure and unsafe condition, and, by reason of defendant's negligence, the latch of said gate broke when one of the cattle came in contact with it and thereby the plaintiff was thrown, and because of defendant's negligence plaintiff sustained serious and permanent personal injuries as hereinafter described.

"Plaintiff avers that the defendant negligently caused and permitted said gate to be in a defective and insecure condition.

"The defendant also negligently caused and permitted the latch of said gate to be in a defective, insecure and unsafe condition so that it broke when one of the cattle came in contact with the gate.

"Plaintiff also avers that the defendant negligently caused and permitted the latch of said gate to become old, worn and weak.

"Plaintiff avers that each of said acts of negligence was a separate act of negligence and each directly caused and contributed to the plaintiff's injuries. The facts and circumstances are peculiarly within the possession of the defendant and plaintiff cannot set out defendant's negligence more specifically than he has done herein.

"By reason of the defendant's negligence, the plaintiff was thrown and because thereof one of the cattle stepped upon his leg and injured and broke it."

The plaintiff testified in substance that he and John L. Rothe were moving cattle from one cattle pen to another; that he (plaintiff) was opening and closing the gates; that before he got away from the gate where the accident happened a wild and excited steer brushed against him, hit the gate, and broke the gate latch, thus causing the gate to swing open; that he had hold of the gate at the time and was jerked down, causing the feet to drag the ground and the steer stepped upon his leg and broke it; that if the latch on the gate had not broken, and the gate had not come open, he would not have been thrown; that when the accident happened he had already latched the gate; that he had reached back and was holding the gate at the time the latch broke; that about six inches of the gate latch broke off; and that the latch was an old piece of timber and was worn and loose.

John L. Rothe, a witness for Peeler, testified:

"I am in the live stock commission business with an office in the exchange building at the Union Stock Yards. On the day in question the plaintiff and I were moving cattle in the alley. Plaintiff was east of the cattle and I had walked into the bunch and one steer ran out. When the steer came in contact with the gate the slat broke and the gate flew open. When the gate opened Mr. Peeler fell to the ground and the steer jumped on him. Then the steer ran down the alley. The slat breaking and the gate giving away was what caused the plaintiff to fall and it was when he fell that his leg got into the position where the steer stepped on it. The latch seemed to be in a very weak condition due to constant use for a number of years and seemed to be worn down. The gate in question was closed across the alley and Peeler walked towards the gate for the purpose of opening it and when he saw the steer coming he just turned around and put out his hands toward the steer. He was in the situation where he was protecting himself from that steer. The steer struck him and the slat broke and Mr. Peeler went down on the ground and the steer jumped on him. Mr. Peeler hadn't gotten to the gate for the purpose of opening it as yet. He and the steer got there about the same time but he turned when the steer was upon him and put out his hands like this and wheeled around and the steer struck him. I don't know just where but pushed him against this gate and the slat broke and he went down and the steer jumped on him. These cattle were wild. As to whether their wildness was what brought this accident about, the steer striking him was what caused this accident; running against this gate and the thing breaking is what caused the damage. The steer was absolutely wild. When Mr. Peeler closed that alley and if these were wild steers, and as to why he didn't get on the other side, I don't think he was compelled to get on the other side. He didn't expect this steer to run out there."

It seems that the defendant offered no testimony as to how the accident happened, and the above is all of the testimony on this subject. It is not questioned that the stockyards in question belonged to and were being operated by the defendant. We also assume, for the purpose of this opinion, that plaintiff was an invitee in the yards at the time he received his injuries. From the statement we have made it is evident that the plaintiff's cause of action is based upon the theory that the latch to the gate in question was defective, and that as a proximate result thereof he received the injuries here complained of. In this connection we assume that the latch was defective, and that such defective condition was due to the negligence of the...