Anderson v. Anderson, 168 N.W. 852

Anderson v. Anderson

168 N.W. 852 | S.D. | 1918

Lead Opinion

POLLEY, J.

Plain-tiff is the surviving widow of Ludwig Anderson, deceased, and is administratrix of his estate. Decedent was killed by a bull owned by defendant, and: this action is *36■brought to recover damages occasioned -by the death of said decedent.

Plaintiff states her -cause -of action in two separate counts. In-■the first, she alleges that the lbu-11 was vic'io-us and known to be vi-cious 'by -defendant, without alleging any negligence -on the part of defendant other than the keeping of the- bull after -defendant h-a-d knowledge of -h-is vi-cic-usi and dangerous tendencies. In- the second count, plaintiff alleges that -defendant, -a-s owner of the said bull, “failed and neglected -to provide- and -maintain a good, -proper, and sufficient stall * * * to control and safely keep said bull, and otherwise failed to take proper -precaution's to prevent s-aid ‘bull from doing injury,” and- that, as a result -of said negligence, sai-d bull-was permitted to attack and kill the decedent.

T.he defendant, in his answer, admitted the ownership of the bull, but denied any negligence on his- part, and denied that he had knowledge that said bull wa-s vicious -or -dangerous or that said bull in fact w-as vi-cious, -and alleged- that said bull was quiet and -tractable, and that he could be safely bandied and- managed, and that he had never shown any dangerous or vicious tendencies. He further alleged that he had provided all necessary, proper; and convenient -means whereby said bull c-ou-ld be safely handled, managed, and -controlled', -and, by w|ay- of affirmative defense, -defendant aleges t-h-at any injury that -had been caused to sai-d decedent by the ■said hull wa-s the result of carelessness -and! negligence on the 'part of said -decedent. The case was tried to a jury. Verdi-ct and judgment were for -plaintiff, and defendant appeals.

[1] It is the theory of the plaintiff, as stat-e-d in 'tihe first count of her complaint, that a .pension keeping a bull or other animal known to be of vicious tendencies is liable for such injuries- as may be -caused' by such- animal, regardless -of the degree of -care exercised by -such owner in restraining and controlling such -animal or the precautions taken by the owner -of such animal to prevent its doing injury. We believ-e this contention is supported- by reason and by the weight of authority. The rule is stated in Congress & Empire Spring Co. v. Edgar, 99 U. S. 659, 25 L. Ed. 487, as follows:

“Whoever keeps an animal accustomed to attack or injure mankind, with the knowledge of its dangerous .propensities, says Addison, is prima fa-cie liable to- an action for -damages at the *37suit of any person attacked or injured iby the 'animal, without proof of any negligence or default in the securing or taking care of the animal; the gist of the action being the keeping of the animal after knowledge of its mischievous disposition.” 3 C. J. 88.

[2] But this rule is subject to the following qualification: If the injured party is guilty of negligence that contributed directly to the injury, such negligence would be a defense to the action. Glidden v. Moore, 14 Neb. 84, 15 N. W. 326, 45 Am. Rep: 98. That the bull in question in this case had developed a vicious disposition and was in fact a “dangerous animal” prior to and at the time of the injury is clearly shown by the evidence. The evidence is sufficient also to charge the defendant with knowledge of the vicious tendencies of the bull, if indeed he did' not have actual knowledge of such fact. These facts unqualified are sufficient to establish defendant’s liability for the injury. But it is contended ■by the appellant that the decedent had equal opportunity with defendant to know of the dangerous disposition of the bull, and in fact did know of such dangerous disposition, and that the injury was brought about by the negligence and want of ordinary care on the part of the decedent. A determination of these questions requires an examination of the circumstances existing at the time of the injury.

[3] The bull was something over three years old at the time of the injury and had- been owned by the defendant :and kept on defendant’s farm since he was a calf. The decedent was a farm hand, and had worked on said farm at intervals all of the time that defendant- had owned the bull. During the times that decedent had worked on said farm, he had assisted in doing the chores, including the care of the bull. He appears to have had the same opportunity as had the defendant to learn the characteristics of the bull. The bull had shown signs of a bad temper and a vicious disposition- for some months prior to the injury. This matter had been the subject of conversation in. decedent’s presence, and he was cautioned to be on his guarti against the bull. Decedent appears to have attached little significance to this warning, and said he was -on good terms with the bull and that he was not afraid of him.

[4] The bull was kept in a stall in defendant’s barn, and either the defendant or one of the hired hands generally led him *38out to water at a watering trough -some 75 or 1001 feet from' the barn; but for some time before the injury to decedent one of the farm hands, who was a witness at the trial, had become afraid of the bull, and when he did the chores he .carried' water to the bull rather than to try to. lead the bull to the water. The bull was fastened in a stall in defendant's barn by means of a rope and a leather strap. The rope was tied to the manger, and one end.of the strap was buckled to1 a ring in the bull’s nose, and' the other end of the .strap was tied to the manger. These fastenings seem to have been .sufficient to hold1 him; or, at least, there is no evidence showing that he ever broke loose or attempted., to break lose when he .wias. tied with both the rope 'and strap. As an appliance of safety in leading the bull, defendant had provided1, what is known as a “bull stick” which, when not in use, was kept in the rear of the stall. On. the evening of the injury, -the decedent and one Johnson (another employee on defendant’s farm and' who was a witness at the trial) were doing chores in the barn, when- the bull commenced) to bellow and to charge about in the -stall. After he had kept up this disturbance some little time, the witness Johnson went into the feed alley and put some feed' in the manger. The bull took no notice of the feed, but continued) bellowing and -charging about in 'the Stall. At that time the witness -discovered that the strap was- not fastened in the ring in the bull’s nose. Witness then called to decedent, who went to the rear of the stall from another part of the barn. He picked) up- the bu-11 stick and started! into an adjoining stall. As he did this, .the witness said to decedent, “Be careful, yon know he is- -only tied- with the hatler rope,” but -decedent -went on into 'the stall and placed' the stick in the manger 'and then turned as if to go back out of the stall. The parition between this stall and the. bull’s stall, -with the exception of one board, which was some four or five feet high, had been torn- out, and, just as dceedent turned, the bull, by a sudden jerk, br-oke the halter rope and charged the decedent. He knocked) decedent down and tramped upon him in such manner as to cause his death.

There is evidence tending to .prove that the decedent, -only a few- minutes .prior to the injury, had. -led the bull out to- water and returned him to his -stall in the barn. Appellant -contends1 that, in so doing, he had unfastened the strap from the ring in the bull’s *39nose, and -that, ¡w-hen he returned the bull to the stall, decedent -had neglected to refas-ten the strap to the said ring, and that it was because this strap had not been fastened to .said1 ring that the' bull was able to break loose and' attack ■ the -decedent ¡as he did; In other word's-, that the neglect on. the part of the ¡decedent to refasten this strap to the ring in the bulbs nose was. the proximate cause of ¡the injury.

[5] Under these circumstances, was the -decedent guilty of such negligence in going into the stall ¡where he was injured as should preclude him if living, and his penslon-al representatives after his death, from recovering, for such injury. In view'of all these facts anld circumstances, w'e believe, that the question of negligence was one to be ¡determined by the jury under proper instructions by the trial ¡court. The instructions given by the court are not set 'out in the printed record. Therefore we must presume that the -question of decedent’s- negligence was submitted to the jury ¡by the trial court, and, the jury having found' ágainst the appellant on the facts, such finding is final. The jury ¡may have found, and in order to reach the -conclusion they did reach must have found, that the decedent had a right to assume that the rope with which the bull was fastened was strong enough to hold him; or they may have found that it was the duty of the appellant 'to have provided a rope strong enough to hold him.

[6] It is -contended by appellant that, in view -of the temper -displayed by the ¡bull at the time of the injury, the -danger was so obvious that the decedent was guilty of contributory negligence in going into the stall where the injury 'occurred. This might be true had the -decedent gone within the length of the halter rope with which the bull was tied,'but whether he was negligent in assuming ¡that the rope would hold the bull, and that decedent was ¡safe so -long; ,as he kept beyond the length of said rope, was ¡a question of fact to be determined- by the jury, and which question we must assume was properly submitted to the jury by the instructions of the -court.

[7] Appellant requested the trial -court to submit the following interrogatories to 'the jury:

“(1) Diid the ¡decedent take the bull- to water on the evening of the accident -and take him back to the barn?

“(2) When the -bull was returned to the barn on the evening *40of the accident and fastened to -the manger, waisi he securely fastened by both rope and strap to the nose?”

' The court refused the request,' and such refusal is assigned as error. Whether a trial court should' or -s-houMl not, in all cases, when so requested1, submit special interrogatories to the jury, is not necessary to determine. The instructions' that were given to the jury are not before this court, and therefore we are bound to presume that all material 'questions were properly submitted to' the jury in the instructions that were given. In 'the absence otf the instructions- that were -given by the court, error cannot be predicated upon the refusal to give a requested instruction or to submit a special finding to the jury.

; The other -assignments- have been examined, but we find no prejudicial error.

The judgment and order -appealed from are affirmed.

Dissenting Opinion

WHITING, P. J.

(dissenting). Under the undisputed- evidence, the deceased- was as fully advised of the dangerous propensities of the 'bull as was the defendant. The undisputed' facts show gross negligence -on -the part of -deceased in .going into' the stall by the side -of this 'bull at a time when the bull was apparently thoroughly aroused) and when deceased was advised that he was not secured by the nose ring. 'Such negligence being undisputed, there w-as nothing to go to the jury, and it was error for the court to' refuse to' direct a verdict for -defendant.

GATES, J., -concurs in 'Hie dissent.