*1 et STOREY al. et ux. v. ZUNIGA
No. 12197. Appeals of Texas. Civil
Court of San Antonio.
April 4, 1951. May 2,
Rehearing Denied Morris, Trevino,
G. Albert Woodson U. Antonio, appellants. San Graves, Burkett, V. San An- James Joe tonio, NORVELL, Justice. appeal
This is an a judgment ren- upon jury dered an instructed verdict defendants, Storey favor of the H. D. Woods, T. Brooks who were operating and conducting performance at a rodeo “Sports Arena” in Brackenridge located Antonio, July 18, Park in San Texas. On 1944-, Hitler, a Brahman named es- caped from pens the arena or stock main- tained defendants and ran loose streets San Antonio until he entered yard adjoining the residence of Jesus Gallegos at Terry Gregorio Court. wife, Zuniga Eduvijes Zuniga, plaintiffs here, below and visiting Gallegos at the time. Mrs. Zuniga yard was in the at- bodily her and tacked inflicted serious in- juries. appeal
On judgment from a instruction, peremptory based evidence light must be viewed most party against favorable to the whom rule, verdict was directed. Under this is clear that sufficient to support finding negligence against allowing defendants pens arena and in failing to capture kill the bull within a reasonable had gained after he his freedom. operators While of rodeos and wild insurers, they west shows are not liable obligated use reasonable care securely penned animals and housed so will loose metropolitan streets in a area. *2 testimony as to gate. in the granted court conflict damages There is for in- Appellee escape. juries by the cattle effected the bull of how reason the active got loose produced the injury. which their Storey testified It was seemingly of the even- entrance” produced same during “grand the the cause which performers injury the the rodeo person, the yet, and while cattle and ing show the According to in the the arena. case of entering person, the
were to the cowboys, that, em- witnesses, the court four five held “The active cause which attempting produced by appellees, injury were the ployed wholly independ- was north end ent of the negligence a chute in the defendant, bull into of get the the performance wholly prior to the of arena the disconnected it.” 90 Tex. them, then 38 S.W. 164. The exact bull turned basis the dis- this gate an at- tinction open between partially ran to to the cattle and prevent' person the entirely in clear, close is tendant as is pointed by out out escape. The this bull went Prof. Leon Green in the animal’s his dis- an cussion of barrier in Proximate through another gate, Neg- burst Cause in Texas ligence Law, arena alley-way the of the 28 Tex.Law outside walls Review 629. open. way the Peeler, into made Tex.Com. Yards v. Union Stock a de App., 37 also involves S.W.2d urged ap- in primary proposition holding follows the of fective verdict that the instructed pellees’ brief is Bigham case. reason there was proper for the was appellees’ actions no Tex.Com.App., Knight, In Carson v. escape allowing the bull to was servants alleged act the sole S.W. injuries proximate cause of sustained Appeals by the considered Commission that such by Zuniga. It asserted Carson, Mrs. attempt employee was the thereto could not injuries or results similar “bulldog” error, plaintiff in is also contend- reasonably foreseen. be trans- while calf which for a affords no basis the evidence ed that employees plaintiff in error ported by the negligence. finding business. engaged in the transfer who was Appeals held that The Commission contentions, appellees support of their In attempting employee negligent Ry. Bigham, Pacific v. Co. cite Texas & “bulldog” after it had the calf Stock S.W. Union 90 Tex. attempt though the was unsuccessful. even Peeler, Tex.Com.App., 37 S.W.2d Yards v. the issue of primarily case deals This Tex.Com.App., Knight, Carson v. with the element negligence, rather than foreseeability which is included within the Bigham case was one in which cat- proximate cause. definition of stampeded through defective tle n over plaintiff approach- ttpon hearing opinion, none of cases cited In our injuries freight Zuniga’s did not point. train. resulted inis to the cattle as well as to the owner who of causes similar from combination result gate. relied near the Chief cases standing those mentioned in Justice result fact that a by appellees. Gaines achieved than the Other species holding that case that the defendant had involved bovine member duty similarity should here, to confine between this cattle and is no there escape their reason have foreseen cited Obvious- those case and but, latch, notwithstanding the defective becoming case of cattle ly, this is not a livestock, duty regarding stated that event frightened by unforeseen some nothing “prophetic ken” barrier, short breaking through a defective nor sequence anticipated the of events re- attempt an unsuccessful it a case plaintiff’s per- sulting in to the bring an animal under made to control thereby The court that the de- son. held here is The issue wheth- by “bulldogging.” anticipate that cattle fendant should was sufficient to or not the evidence er freight train, run upon hearing appel- would jury finding that supported a n outthe they gate, pro- but discharge duty could not foresee failed to lees n wouldrun person standing in the over an animal tect ver- that time purposes. Whichever could not escape because he was using for show ap- testimony accepted, it confined and sion closed. With pears securely while the closed, made his fought, appellees’ and charged cowboys. hooked under the immediate control Be- *3 capture behavior, to cause of cowboys this servants. Said servants additional upon he had came help or restrain the until after the scene to drive the un- ruly An- bull pen. run streets of San into the through wild the the bull While bodily injury was “charging tonio kept coming and inflicted serious them and away down was two miles the center Zuniga, ring, kept and get- who ting back gate,” from bull made his es- the cowboy opened the the where one gate the cape. jury cowboy. could From the evidence admit another One witness and stated that properly concluded the bull made a dash cowboy their negligent. standing servants were at the and while cowboys other coming through the opinion question the In our gate the bull struck the and went on foreseeability in the issue of embraced (cid:127)out. Another witness that when the said jury. proximate likewise 'bull ran towards the gate, the man watch- “failed urged it, ing “just let the go.” things These danger and the bull was of a vicious transpired at a time gates other lead- to the ous character.” are directed We ing open. outside the arena were wide testimony Storey appellee where We have here a ex usually stated that a Brahman bull wants hibition and its intractable nature was away ordinarily people and from Immediately known to the exhibitors. be Jersey not as or Hereford vicious as a escape its securely confined, fore it was bull, particular and that bull had not this permitted escape and was then prior displayed involved the occasion opening of at a time when other disposition. may ferocious be that a gates leading open. outside were also' surroundings Brahman bull in his natural may Whatever 'have been the natural dis comparative is a inoffensive creature. In position of the bull or the record his- India, regarded his native as a sacred ancestry, say feel reasonably we safe in animal, 1944, July 14, particular but on this jury properly that a find that bull, “Hitler,” will, against much his appellees knew or should have known that acting performer as in wild west show bull, prior escape, to his danger being subjected He rodeo. was not ous it should have been reason ordinarily to the treatment accorded to do ably foreseen that and harm would mestic think a animals and we distinction escape from result allowed to Blackie, well be made between charging run arena and the rodeo yard Elsie, cow, dog and milch through the streets. hand, Hitler, sorely one beset and proximate Issues of tormented hand. An cause were raised subjected the evidence and imals to the treatment re jury. should been submitted to the frightened, ceive in rodeo shows become Ry. Co., Collins v. Pecos & N. T. 110 Tex. dangerous, appel- infuriated and hence 577, 156; 222 S.W. An S.W. San lees are this Behne, Ry. Tex.Com.App., tonio & A. P. v. accept appel fact. If we version Carey witnesses, Distributing v. Pure required lants’ as we Corp., 133 Tex. 847; Mis S.W.2d appeal, appears appellees’ souri, Kansas, Texas R. Co. of Texas v. servants had actual of the ani McLain, 133 Tex. 126 S.W.2d dangerous propensities immediately mal’s Flores, v. Sullivan 134 Tex. S.W.2d prior escape. time he made engaged had the efforts of five rodeo cowboys unsuccessfully out, who pointed tried to errors judg- drive For pen, him all the other bulls the trial court is reversed and into ment of difficulty. gone without The bull remanded for another trial. at cause MURRAY, (dis- the case of an animal breaks Chief W. O. Justice fierce, nature and is tameness of its senting) . so, is known owners to opinion agree I am unable one which is ferae naturae. respectfully en- majority and therefore is sufficient if owner has my “It seen ter dissent. or- enough heard man to convince a I view it fails to show dinary prudence of the animal’s inclination employees were appellees or injuries complained to commit the class of enabled negligence which guilty question of. is whether in each case “Hitler” Brahman bull put the notice was sufficient to *4 the owner Brackenridge in Park. Sports Arena him, require guard on as an his to this bull fails to show that prudent man, anticipate ordinarily to vicious appellees to to be a known injury actually is which has occurred. that dangerous animal. fact essential, liability not on in order to fasten occasion in proved to be vicious owner, pre- that he have of notice a the fact that not establish question does knew, injury ought to or vious others if knowledge prior of his vi- appellees had known, to have that the animal had dan- propensities. undisputed evi- cious words, gerous propensities. In other general as rule Brahman is a dence that species owner of an animal a which is of away people rather try bulls to ordinarily an harmless is not liable for appellees and that 'had than to attack them injury by person done a it to unless different knowledge that Hitler was no per- animal was to injuring accustomed Brahman bulls. from other sons or had an inclination do so to the to of knowledge the owner. of The owner p. stated in the rule We find Am.Jur. may a domestic be chargeable animal follows: its neglect notice of viciousness an animal “In owner of General. —The to take notice of habits. has its vicious is naturally vicious not answerable for not stated, however, enough been not is it by when in a where injury done it an charge a dog might the owner of that he be, was, it in fact right unless it have known of the vicious or mischievous If, being knowledge, to his vicious. propensities by dog of the of the exercise disposition, peaceable it aof theretofore reasonable care. suddenly unexpectedly, while in the the owner of a has “If domestic animal servants, or his in- owner charge of its propensity notice of its class commit the another, neither, if at that flicts complained of, injuries of is immaterial it exercised, answer- care was is time due savage not or animal was cross knowingly keeps a if one vi- able. But playfulness, good but acted in nature and animal, is dangerous which ac- or cious as the intent animal is not material of mankind, injure attack and customed to its attentions hurtful. prima usually that he rule stated is is by it, generally the ancient rule as injuries with- “While done facie liable for gist stated found of action for proof negligence the manner of as to out injuries by inflicted animal is on which ferocious keeping negligence it. The keeping knowledge it its vicious liability keeping such an founded is propensities, negligence propensities. or its want animal with being immaterial, negligence deemed action is the ani- gist keeping of the disposi- some courts a more accurate knowledge of its statement vicious mal with principle species governing true owner’s animal of not tion. When responsibility legal gist to be seems that the naturally dangerous mankind has been possess keep action is the failure to such of the owner or its vicious found securely, passes being it said that there is disposition, into the dangerous liability securely keeping a ferocious keeps the owner no which animals class liability respects the animal with of its vicious dis- peril. As authority position. There is also some no distinction owner, there is between 'liability appellants no The burden there is to the effect that viciousness introduce evidence sufficient known an animal of appellees rea- al- guilty negligence or want of were negligence unless there is as to lowing the animal from the arena sonable care so the li- injury, negligent in not sooner prevent doing its capturing killing which burden committed ability an owner for prima appellants, my opinion, dis- by an animal known not viciou's absolute, charged. only, be avoided facie restraining the an- diligence If guilty negligence were not propen- known imal commensurate with its in allowing pro- a bull known vicious sities.” pensities escape, then the possible theory upon case in which a known being This appellees permitted animal was recover dangerous vicious and would be that owners, kept by recovery can be had in violation law. proof the We have only upon general no statute in this State proxi- prohibiting which was the part allowing owners owners *5 large. only livestock to run at mate cause of the The such option appellants. I not laws are local complained laws of which courts do' judicial State, not take single negligence act of notice. Hill v. find that one 79, 940; es- 58 Cr.R. 124 part agents or their McCormick 83, Ray Evidence, of Texas Law of the evidence. The nearest tablished § p. 138. A party relying on a approach negligence to a is that who local option statute allege end must that guarding the man at the south necessary steps have post been taken to the arena abandoned his put territory such laws in effect in the the 'bull climbed the fence when trespass alleged thereby permitted or allegation have occurred. Here there is no arena. There is no evi- proof ordinary local stock law we must indicating dence that a man so presume none was in effect. prudence have done differ- anything would ently from what man did. It would 1015, Section 14 of Article Vernon’s Ann. seem that had he acted otherwise he would Civ.Stats., empowers city adopt probably have lost his life. There is noth- prevent, ordinance regulate “To and con- show that it cattle, trol the driving horses and other guarding open man it for the city.” animals into or There purpose cowboys of permitting additional allegation proof City was no that help come into the arena to subdue San Antonio has ever enacted such Apparently bull. the entire trouble re- ordinance, presume and we cannot suddenly sulted from the fact that the bull judicial has. Courts do take notice of and unexpectedly charged in such Evidence, Wigmore city ordinances. on a manner gateman as not give 2572, Evidence, 116, p. 552; on § Jones to close the gate but forced him to flee for p. 200. safety. his own There is no evidence here far So as this record shows it is not un- any there was any defect of kind in permit lawful for an owner cattle any pens, chutes, fences or gates City to run at in the of San Antonio. used in connection Rodeo. statute, 1370a, general do have a We Art. Likewise, Ann.P.C., there is makes it unlaw- no evidence Vernon’s that there permit were an insufficient number ful an owner to his livestock cowboys attempted who recapture at large, any to run unattended des- bull after escaped, or that were lacking ignated highway of this that is fenced State skill ability to do only so. The There is no here evi- on both sides. contention dence roped is that when they complained up- at the bull of occurred that the they missed. This highway does designated itself on a this State negligence. fenced both sides.
130 381; Torts, injury done. 1 on Addison that this no evidence here There is Bacon, Cooley Torts, 340; 31 Saxton v. large, even unlawfully running 540; Thompson Negligence, he Vt. had shown though §§ the evidence 842, Corpus Juris, R.C.L. go where turned out to purposely of re- 94.” grounds
pleased. possible knowl- appellees, with covery would be that my clear to if the law in mind that likely attack edge that this bull was had been the as it is in Texas Illinois same large, did permitted mankind if been instructed verdict would prevent his es- ordinary not use care to given. establish this cape. does not The evidence Another case is that of Wal- opinion my of care therefore want Nickerson, 522, 197 N.E. ker v. 291 Mass. a ver- properly court the trial instructed that case from the 451. In a cow dict land, plain- strayed defendant’s any in this State not found cases I have tiff’s land and while there “butted” the However, point. directly in or elsewhere ground. plaintiff and her knocked to* jurisdic in other found some cases I requires law of Massachusetts stock case enlightening. tions owner to fence his cattle in and Trisler, N.E. 311 Ill. McKee v. respect is from the of Texas. different law where the own A.L.R. is a case held a tres- court the cow was a mule sued for the loss er a bull was land, passer upon plaintiff’s or she b)r In Illinois the death the bull. gored to through a defective fence. The court fur- just opposite of the law in law is stock *6 plaintiff ther found did not have to Texas, required in that owner is prove duty scienter because of stock in and other landowners fence his keep defendant on his own his cattle required out. The to fence stock are not premises peril. at his went owner that of Fra- Another case is plaintiff and there premises Chapman ser v. Mass. N.E. mule death. There Court gored his ram, the owner a known wherein “There a motion to direct a was said: vicious, permitted him to be toit defendant, argued it is verdict for premises premises and onto the from his motion, denying that the court erred plaintiff, lady, attempted another. was no evidence because there patch strawberry the ram to drive out of any knowledge that the bull defendant seriously injured. bunted it and was injuries. was accustomed commit permit rams It was unlawful knew that he owned defendant place time and where the field, keeping him in his was occurred. The court held de- propen chargeable securely having keep fendant bulls and their habits. sities of ram, likely premises known to be his own however, necessary, scienter. mankind, responsible to attack trespass action was gist any irrespective damage plaintiff's entering breaking into close, damages part. go in such a case the re his Some states far. though aggravation as an defendant are recovered of Even sulting trespass. necessity of scienter is domestic propensities, according some vicious cases where an animal was and, damages he is not liable for be, decisions right it had a if if it without unlawfully trespassing part. Animals, C.J.S., fault on his plaintiff, the nature and extent of land of p. 1247. to be determined from