*1 673 disability from October total twenty-three weeks for period .a testimony ground 1932, upon there was not sufficient 31, finding to sustain the award commission. in the record for in- fully compensated his plaintiff the commission that had been jury was, competent evidence, upon conclusive sustained upon trial as well this court. court Dr. Miller testified that was able to return to duties n on 1932, February 1932; April 25, examined that he question,” plaintiff was, at which time “without able to or- dinary work. gave corroborating D.r.
Dr. Francisco the evidence of Miller. contrary expert opinion
Plaintiff’s evidence was to that of the evi- weight exclusively dence, value but thereof was n commissionand its determination thereof was conclusive n court. Hotel, (2d) Mark Twain S. W. [King v. Duckworth Macon, (2d) City v. recognizes argues counsel the rule stated worthy question Dr. Miller
the evidence of was not of belief. That was for the commission. It is there was competent evidence findings sustaining commission. cir- Reynolds, G., is reversed. concurs. cuit court foregoing
PER opinion CURIAM: The adopt- is Campbell, C., opinion as the of the court. The of the circuit ad court concur. reversed. Crawford, Respondent, Edith Kansas Stock Yards App ellant. 73 S. W. 308. January Appeals. Court of 1934. *2 B. B. Brewster Moore, Smith, re- Aughiribcmgh <&Ault
spondent. Borders, Borders & Wwrrieh for appellant. walking Plaintiff, while CAMPBELL, September C. City, Missouri, was Main in Kansas
upon Tenth Street near Street steer, had severely by which injured. were caused Her City defendant Kansas Stock escaped from the stock of the brought against falling Company, running Yards her. She against City Kansas Stock action Yards injuries. A Liggett damages for trial William her said recover M. de- in favor of the resulted in verdict and $5000 in the sum of fendant and verdict against Company. Kansas Stock Yards defendant, appealed. hereafter has Yards called injured day plaintiff seventy-four On head of cattle consigned yards, shipped received, into the un- pen al- loaded and driven into been Liggett. night lotted to locked daytime “selling' unlocked when *3 key employees cattle.” Mr. nor Neither had a the lock. day
Later in the Mr. Liggett the on which received and employees fifty two of his drove head of them from the into intending alley, way them to scales and 10. take While on the injured plaintiff the steer which struck and unmanageable, became along “jumped” by drivers, alley ran escaped through and gate an open Exchange at the southwest corner of the defendant’s Building public City. gate and onto a street in Kansas when yards off whole stock from “cuts the street.” Smith,
Mr. a witness for testified:. ordinarily customarily “. . that taking the manner of fifty grain .-Liggett’s. head of fed steers from-Mr pens to the scales is as. follows: one man is sent ahead and man behind one ahead, equipped whip, man with a club or turns the cattle south alley from the main east and west to scales that the number cattle handled varies from few hundred to over 50,000 supposed day; he the Stock Yards main- gate; guess tained the outer was that the distance from- alley gate main east end of the east-west to the .200 feet gate, fifty feet; from the scale outside the to the had he gate prevent out; outer himself getting once closed the a steer getting in twenty-nine years; that he knew of but two steers they out gets until help by.” never holler for after a steer Jackson, Liggett’s employee, Mr. testified that: fought long I as I “After this steer as could and saw he was clear away me, I anything stop him, do I more .to Mr. up him Smith testified morning hollered to hold thing first do. we up’ or Yes, him always do.? A. ‘hold way you ‘‘Q. Is that the gate.’ ‘shut “Q. yell A. you that? Did Yes. ‘‘ anyways anyone near could loud, Q. Plenty A. so loud. How '
hear me. to have enough gate man there “Q. down Was it loud Yes, sir. you? A. heard ‘‘ you anybody up Q. to the east of take on you observe Did’ along there the fence several Ok, yes, there were fellows ? A. shout away anything morning starts to when I testified this and as up.’ him gate’ or ‘hold everybody cry raises ‘shut is the A. “Q. there ahead steer? you hear those cries made Did places. Several following steer, “Q. you A. Instead of Then, what did do? I ran south. alley? A. “Q. Yes. of the double In this east
‘‘Q. you were a line you far did have to run until How south forty-three steps. gate? A. Just with the ‘‘ Q. ? A. the fence to see Then, Climbed what Exchange Building I or north. saw at the had turned south the steer gate. again I turning to shut north and hollered he was “Q. A. He was what the man did then? start- Did see gate. ing towards the gates? toward up saw him start When already Yes, he started. had to the south you jump over? Did down run fence, and crawled over.
side there, you got happened? what when And already gone by Silby.” Mr. *4 employee gate man, Silby, known as the of Mr. gate. was at near the of work place and as follows: Mr. testified of steers started is that about one-third those
‘‘My recollection something they surged scared and and them going to the scales south fight They badly quite got there. pretty we had a of course and back going through the cattle fence and and People on the scared. quite around and around. W‘ehad a battle around and began to mill finally them off into the scales—the bulk of them and there . . . them. get away get through and knew if a that open You Naturally. streets? be on the gate would out it ‘‘Q. pretty dangerous be a thing knew that would if And stockyards running and broke out of went steers one of those City, Yes, you? didn’t the sidewalks of down up and sir. fact, Liggett, a country Mr. steer from the ‘‘Q. of As a matter are city there where Avay of a populous loose in that on the sidewalks as along, be about walking would people women and children and dangerous. imagine! A. Rather dangerous thing a as ‘‘ recog- man Q. dangerous. you, course, as a cattle Rather And of . . A. Yes, nize that fact? sir. your through years experience of a And cattle man as being and held and herded to know that cattle driven learned together likely to mill? A. are ‘‘ fight them, Q. is that milling, you likely have to And once are to right? A. Yes. fight apt them to some of are And once have to
get by you, true, that is isn’t it? Yes.” he was Elrod, a testified that
Mr. witness for yards; in operating stock that a a commission firm member of in years yards; covering thirty-two. of in the experience, period a ‘‘ ’’ very gate, escapes through main he had of out known few gate; that “keeps that man at near the defendant a some scales that . in; . that gate a keep few times the has been shut be gate anyone man that usually happened it but that shuts gate the cattle also did.” witness further near the saw formerly ap- pens “that committee testified allotted Exchange pointed by Live and the Stock Yards recently but the Stock Yards had taken it over.” tes abstract it is shown that Mr. Smith plaintiff’s additional ordinary tified that an steer taken to the stock with a bunch ‘ ’ ‘ ’ things strange him, they away; of are liable break steers cattle;” “in stop that he he had seen time ‘1 getting away had heard of steers from other commission men and knowledge away do break common out.” refusing The defendant contends the court erred to direct following (1) favor verdict in its reasons: That the de- custody, possession fendant had neither control nor the steer at the (2) escape; defendant, any, time that the injuries, (3) proximate allegations proof. fatal variance between and the In de- termining question, plaintiff is entitled to have the evidence every her and to have benefit of favor taken true reasonable Wells, (2d) drawn therefrom. inference to be S. W. [Roan Co., v. Atlas Portland Cement Morris presents theory the case the evidence conclusively shows that the defendant neither custody, control nor possession the steer at the time of its The rule invoked *5 damages is not is that liable “one inflicted own, which he does not harbor control.” animal or C. J. [3 further Mr. Jackson testified:
“Q. you driving these When cattle over inside
co t- CO Company had Stock Yards you going stockyards, were where you A. take them? Yes. directed ” ! “Q. A. scale? "Wes. To this Yards Stock “Q. scale? A. Kansas operated the "Who employees. Company carry
:“Q. got there, they over you When did A. bought close the them? We would packer or whoever right there. and our work them ceases “Q. right. anywhere, Now, control these cattle as to the over anything you facilities of this stock- have to do with the outside yards ? A. No.
“Q. Liggett? No, Or did Mr. sir. just now, I think it hadn’t been all— minute — your turn at scales there, this scale of the Kansas you Yards would the Stock Yards have made moving your wait the matter of those steers until it was turn? sir; A. Yes, we would have to wait our turn. they If necessary, down, had to other cattle you put
could have your ordered them back into pens? sir. “Q. Until the next turn came around? Yes.
“Q. They you tell put they give you where to the cattle and turn that have the scales? A. Yes. “Q. Designate which scales shall take them to? A. Yes. course, you And of alleys to take them down the arranged that are for those scales ? A. Yes.
££Q. alleys They tell what to take furnish the into which are to drive them? A. Yes.
££Q. They equipment alley? furnish the for that A. Yes.” owned and controlled the and it is it every controlled or directed movement of cattle therein. legal circumstances the defendant in a sense had control of the steer at the time of its The term “power “control” means authority restrain; or to check restraining directing influence; regulating power.” C. J. 838.] [13 Were we to sustain the though defendant’s contention that negligently permitted the steer escape injure plaintiff it therefor, was not liable then we legal would in result say that duty defendant owed public no to the to exercise due care prevent yards. cattle from its This, we decline to do.
The negligence contends that the charged was not the injuries. proximate plaintiff’s cause There must be casual connec tion between defendant’s injuries to im pose liability on defendant. Hogan In the case of Fleming, 297 S. £‘ 404, 409", W. it was ruled: primary cause will be the proximate *6 succeeding cause where it is so linked and bound to the events that whole, operating all one so on the create become continuous the injury primary others as to make the result of the cause.” 625, Light In the of Electric Mo. case Harrison v. court said: negligent negligence “If combines with a defendant and his cause, intervening another, independent, that of or with other though negligence negligence he is liable was not or the the sole although negligence proximate cause, and without such other sole independent, intervening produced injury.” cause could not Applying the rule to the facts of this ease it is we judicially say escape cannot that the of was proxi- the steer not the injuries. plaintiff’s question jury. of mate cause was It is also insisted defendant there was a fatal variance allegations between proof. petition alleged and the that de- fendant had under its control a number of wild steers which had been shipped yards. to its said that Plaintiff’s witness the steer escaped grass was a “Kansas steer.”
Webster’s New Dictionary International defines “impatient wild as of, subjected to, or not regulation.” restraint or The actions of the demonstrated that unruly. it was wild and While in the experienced though driver, club, armed with a could not variance, restrain it. There was no allegation proof. between says The defendant instruction No. 1 was erroneous for the reason that jury it did not question submit to the toas whether or not the possession defendant had or control of the steer the time of its We have stated the facts and need not restate them. say Suffice it to that the effect of the evidence of both plaintiff and defendant was that the latter had such control of the steer at the time of its escape impose liability that the law will damages resulting defendant for escape from the in event the negligence. was caused requested give defendant the court to its instructions Nos.
11, 23 request and 30. The was sought refused. The defendant the refused question instructions to have the as to whether or not defendant in possession or control of the steer at the time it de- parted from its jury. submitted to the The 'instructions were properly refused for the reason legal that defendant inwas control during of the steer all yards. of'the time it was in defendant’s in requested instruction No. 17 the court to jury instruct if it found that negligent defendant 'was guilty was also of negligence, and that the latter’s negligence negligence followed of defendant in point time, of negligence that of “simply possible made of the act negligence Liggett,” any, negligence and that “was causing injuries efficient in plaintiff,” and that the directly contribute did not We not find not recover. then negligence. He guilty tending to show were alley. Until the animals- into the cattle from drove the unruly. nothing indicate that began “mill” and one of the'way to the scales While on *7 helpers. Liggett “jumped” by pre- utmost themselves employees exerted Hence, nothing running by from them. vent the steer upon which to the instruction. base sought to have the 32 the requested No. In instruction its by the em-
jury that 'after steer run it found told not have “did not know or could the defendant ployee of fact” in time by diligence known of such of reasonable the exercise gate, then could not recover. de- plaintiff have to- has not called attention 'evidence fendant base instruction and we found none. have sought have refused No. the defendant instruction jury knew exercise of rea- that unless told have known that one of the steers mentioned in sonable care could custody evidence would the control and then not could not recover. It should said'that could be proved not unless she that defendant knew recover known that one of the steers -would The defendant was charged might run with notice that its driver but it was charged fifty that one'of the steers notice would run Liggett. employee Furthermore, misleading instruction was the reason that assumed had control of the steer. Reynolds, 0., is affirmed. concurs. foregoing PER opinion adopt- CURIAM: The CAMPBELL, C., opinion ed as the court. The is affirmed. concur. Maryland Appellant. Casualty Friedman, Respondent, Co., Sam 491. February Appeals. Court of 1934.