221 Mo. 700 | Mo. | 1909
This is an action for personal injuries. Plaintiff was an employee of defendant, which is a Missouri corporation engaged in the business of a commission merchant, buying and selling horses and mules. In its said business the defendant was using a certain barn in Kansas City, Missouri, known by it as barn “C,” which barn extended from Cenessee street on the east to Bell street on the west. Through said barn from east to west was an alley twelve feet wide and upon either side thereof were pens in which horses and mules were kept, fed and watered. This alley way had a board floor, and these pens opened in such alley way by means of gates, which gates were in length about the width of said alley way, and swung out into said alley way, so that when the gate of the pen was opened it might be used, if desired, to close the alley way. On the south side of the alley were what were known as pens No. 1, No. 2 and No. 3, No. 1 being at the east end of this alley way and going west followed No. 2 and No. 3 in order. The gate to said pen No. 2 could be opened so that it would close the passage way of' said alley way so as to prevent the horses coming out of said pen from going eastward to the street on the east of the barn. At the time of the accident, plaintiff was removing some horses from
“That it was the duty of defendant to keep said gates and alley in a reasonably safe condition for the purposes aforesaid, but plaintiff states that said defendant negligently and carelessly failed to perform said duty in this, to-wit: That the floor of said alley was at the time of said injury and for a long time prior thereto had beén in a defective, dilapidated and unsafe condition, the boards thereof were broken and rotten and the surface was uneven and portions thereof about the gate into which said horses were to be driven were raised up so that said gate could not be fully opened and swung back against said pens, but when opened as far as possible projected out into said alley and left a space between said gate and pens into which the said horses might rush when being driven from one pen to another.
“The plaintiff in transferring said horses opened said gate as far as the same would go; and while in the act of taking a position beyond the said gate to turn the horses therein, the said horses rushed into the space between the said gates and said pens and threw said gate with great force and violence around and against the plaintiff, knocking him down and permanently injuring him.”
Damages were alleg-ed in the sum of $10,845, which included $325 for medical attendance and $520 for loss of earnings. There was a second count but this was dismissed and need not be noticed further.
Plaintiff had verdict and judgment for $5,000, from which judgment defendant, after an unsuccessful motion for new trial, has appealed.
The evidence in the case discloses about this state of facts. On June 1st and for a long time prior thereto defendant had the plaintiff in its employ. Defendant was continuously receiving horses and mules for sale, which came from all sections of the country. Plaintiff was what is sometimes denominated a “straw boss” and under the evidence he was strictly such, if in fact he reached that altitude in the scale. It appears that he did see that the men in defendant’s employ around their said barn “ C ” worked, and he worked with them. At times he was alone there and at times he had other men with him. One J. C. Endieott was the foreman for defendant and visited this and other bams belonging to defendant practically every day. Pie said the duties of the plaintiff were to water, feed and curry the horses, place them around in the barn “and kind of keep the men that I (Endieott) had under him working down there busy.” This witness also said that if anything got out of shape plaintiff was expected to fix it up if he could, and if not, to report it to' him.
Mr. Wolcott, vice-president of defendant, said plaintiff was not expected to make repairs; that his business was to take care of the horses; that Endieott was their general foreman and hired and discharged the men, and that Endieott had the right to give orders to Buckner, the plaintiff; that he knew of the condition of the gate only in a general way; that looking after the condition of the gate was supposed to be done by the foreman. Endieott was made a witness
It was shown that this alley way floor was made of planks running cross-wise, which planks were two or three inches thick and twelve inches wide. That they had become badly rotted and worn near the-center of the alley way, with holes and broken places therein. That they had been in such condition for a long time prior to said June 1, 1901, the date of the accident to plaintiff; that by reason of such condition the ends of such planks next to the south side of the alley way had become so elevated as to preclude the gates from going clear back to the fence when the same were opened; that these gates had hooks upon them for the purpose of fastening them to the alley way fence when opened in full, thus preventing horses from getting between the end of the gate and the fence, and when opened half way for the purpose of closing the alley way these hooks would catch in a staple on the opposite side.
It also- appears that plaintiff had full knowledge of these conditions and had notified the foreman Endicott thereof and that Endicott had promised to have the same repaired.
The night before the accident defendant had received a lot of western horses, which were somewhat wild — the receipt of such character of horses was not an unusual occurrence, however. These horses had been placed- in pen No. 2 and when the owner of the horses came down the next morning he asked plaintiff to divide them and place a part in another pen. Plaintiff had no help that morning and declined to do so, whereupon the owner went to the foreman,
Omitting the instruction upon the measure of the damages, the instructions given for the plaintiff read:
“2. The court instructs the jury that if you find from the evidence that plaintiff was employed hy defendant to care for the horses in its charge and possession, and was ordered hy defendant’s foreman to transfer certain horses in its barn from one pen to another therein, through an alley alongside of said pens, and that the floor of said alley was in a dilapidated and defective condition, and the surface thereof so uneven .that the gate to said pen into which said horses were to he driven could not he opened fully, hut when opened so far as said floor would allow, projected into said alley so that the horses in passing from one pen to the other would likely run behind and against said gate, and that hy reason thereof, said floor and gate were not reasonably safe and sufficient; that said conditions were known to defendant, or had existed for such length of time that defendant,
113. And you are further instructed that although you may believe from the evidence that plaintiff knew of the defective condition of said gate and alley, and the danger therefrom, in transferring said horses, yet if you further find that the use of said gate and alley was not so dangerous as to threaten immediate injury, or if a reasonably prudent person in the exercise of care and caution incident to the situation in which he was placed, would have continued to work about said place, his knowledge of said defects would not defeat a recovery by him.
“4. By contributory negligence is meant the want of such care and prudence on the part of the plaintiff as an ordinarily careful and prudent person would have used under the same circumstances. ’ ’
Defendant asked an instruction in the nature of a demurrer and none other. This instruction was refused. Such are the facts of this record.
I. Defendant having stood upon the one instruction in the nature of a demurrer, below, urges here and with some force, that there was no case to be submitted to the jury. The case is not absolutely without difficulties, yet when we consider all the applicable rules, we are of opinion that there was made by plaintiff such a case as entitled him to have the judgment of a jury upon the facts.
First, there is ample evidence in the record to show that plaintiff had no duty to repair the place
Where there is kno'wledge of dangerous conditions upon the part of both employer and employee, and a promise from the employer to remedy the condition, the rule is well expressed by this court in Holloran v. Iron Foundry Co., 133 Mo. l. c. 479, where we said: “This brings us to the contention of plaintiff’s counsel that this case falls within the exception to the general rule, that, notwithstanding the defect or risk is brought to the knowledge of the employee yet if he reports it to Ms employer and the master promises to repair the defect or remove the danger, the servant can recover for an injury caused thereby, within such a period as it would be reasonable to allow the master for its performance, and for any injury suffered in any period which would not-preclude all reasonable expectations
But it is urged that the accident is not one which could have been anticipated by the defendant. In other words defendant could not anticipate that wild horses would run between the partly opened gate and the fence, and thus cause the injury. Defendant knew that it was handling horses of that kind and character: Defendant knew that the fence and gate were out of repair and that a promise to repair had been given. It is not essential that defendant could have anticipated the very injury complained of, or that it could have anticipated that it would have occurred in the exact manner in which it did occur, but it is sufficient if the negligence of the defendant was the proximate cause of the injury. [Dean v. Railroad, 199 Mo. l. c. 411; Harrison v. Light Co., 195 Mo. l. c. 629; Hoepper v. Southern Hotel Co., 142 Mo. 378.]
In the Dean case, supra, we quoted with approval the following from the case of Fishburn v. Railroad, 127 Iowa l. c. 492: “The liability of a person charged with negligence does not depend on the question whether, with the exercise of reasonable prudence, he could or ought to have foreseen the very injury complained of; but he may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission.” This as succinctly states the rule as we can state it.
Again, defendant urges that the unforeseen conduct of the horses and not the condition of the floor and gate caused the accident, or was the proximate
In the Harrison case, supra, we find a review of all our cases and further citation is useless. After this review the rule of law is thus stated: “Many other cases in this State might be cited illustrative of the rule in reference to concurrent negligence constituting proximate cause, but the foregoing cases are sufficient to demonstrate that if a defendant is negligent and his negligence combines with that of another, or with any other independent, intervening cause, he is liable although his negligence was, not the sole negligence or the sole proximate cause, and although his negligence without such other independent, intervening cause would not have produced the injury.”
We conclude therefore that there was no error in refusing the one instruction asked by the defendant.
. II. Some complaint is made of the instructions given for the plaintiff, which instructions we have herein set out in full. We are of opinion that there is nothing objectionable in these instructions. They fairly declare the law under the facts of the case. We conclude that there is merit in plaintiff’s case and that the trial, nisi, conformed to settled principles, and the judgment will be affirmed.