Opinion
No. 21509.
June 18, 1951.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, PAUL A. BUZARD, J.
Cornelius Roach, Wilfred Wimmell, Mack Hency, Kansas City, Roach, Brenner Wimmell, Kansas City, of counsel, for appellant.
E. E. Thompson, F. L. Thompson, Eugene R. Brouse, Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell Trusty, Kansas City, of counsel, for respondent.
Carl Maisch, plaintiff, obtained a judgment against Kansas City Stock Yards Company, defendant, in the amount of $3,000. The judgment was for personal injuries sustained when struck by a heifer, while plaintiff was working in the sorting alleys of defendant. Defendant appeals.
Only such evidence as is favorable to plaintiff's theory of recovery will be set out and considered except as it may become necessary to state and consider evidence vital to the determination of points presented.
Defendant maintains stockyard facilities, in Kansas City, to which producers of live stock ship cattle, consigned to various Commission firms for sale. The Commission firms maintain the Live Stock Exchange, which organization receives, from employees of defendant, all cattle delivered to defendant's yards. Plaintiff was an employee of the Live Stock Exchange, his duties being to receive from employees of defendant such cattle as were unloaded at certain "truck" chutes adjacent to the sorting alley in which he worked, and to sort out and separate cattle consigned to the various Commission firms.
It was shown that some cattle shipped to the yards were vicious and dangerous; and others were highly nervous and, consequently, might cause injuries to handlers in the yards; that it was the custom that truckers, transporting and delivering cattle from producers to the yards, frequently would note on the shipping ticket the description and propensities of such cattle as were considered wild or dangerous, delivering said tickets, so marked, together with the cattle to defendant's employees who, in turn, would deliver said tickets personally to plaintiff and other employees of the Live Stock Exchange or would place them in a tin can on a post at the gate of the pen in which various truck loads of cattle were temporarily held; that usually the tickets were at the gate "behind" the cattle; that, because plaintiff and his co-employees frequently were required to walk through the holding pen, with the cattle in it, in order to secure the tickets informing them of the dangerous propensities, if any, of cattle confined therein, it was the custom of defendant's employees to shout a warning to plaintiff and his co-workers to "look out, bad bull," "wild cattle," "watch these cattle" or some similar warning; that it was also the custom, because of the noise and confusion prevailing in the yards, to secure an acknowledgment from plaintiff, or others to whom such warning was given, that the warning had been heard and understood. There was evidence tending to prove that plaintiff knew of, and relied on, this custom of giving verbal warning of the dangerous character of cattle received.
At about 1:30 A.M. July 10, 1945, a truck operated by Mr. Kellstadt who testified on behalf of plaintiff, arrived with some twelve or fifteen head of cattle. These cattle were delivered to Mr. Bush, defendant's employee, who was a witness for plaintiff. Three head of these cattle were owned by Mr. Matthews, who was present when they were delivered to defendant and who testified as a witness on its behalf. Pursuant to the custom and practice followed at the yards, the truck driver delivered the cattle to Bush, together with the consignment "tickets" describing them and naming the various consignees. The Matthews cattle were horned Herefords, a bull, a steer, and a two year old heifer, unmarked. These cattle were wild. The trucker stated that he could not get close enough to them, when loaded, to mark them with clippers and, at the request of Mr. Matthews, he noted on the ticket covering them: "These cattle are wild." This was done in order that handlers might take precautions against injury.
Bush warned Mr. Luke, an employee of defendant who received them from Bush, that the cattle were wild. Luke had charge of the cattle until they were driven into the pen adjoining the sorting alley. He stated that he shouted to plaintiff and Mr. Brown, who were working in the sorting alley, that the cattle were wild, but that plaintiff failed to acknowledge the warning.
Plaintiff testified to the effect that he was working in the pen to the east of the one in which these cattle were driven, in the sorting alley proper, (which was an east-west alley); that it was the custom to clear the alley of one truck load of cattle before permitting other cattle to come in, in order to prevent mingling and thereby causing confusion as to ownership and consignment of cattle marked similarly in different trucks; that he had cleared the cattle from the pen and went to the gate forming the rear, or west end of the alley, to get the tickets covering the cattle so cleared; that he opened that gate and went toward the east, looking at the tickets; that when he got about three feet east of the second gate his fellow worker, Mr. Brown, shouted: "Look out!"; that plaintiff turned his head to the right and saw a white faced heifer about five feet away, charging him; that the heifer struck his head and shoulders, knocking him unconscious; that he had received no warning that the wild heifer was coming; that plaintiff relied on the custom to warn and, therefore, was not on guard so as to preserve himself from injury; that he again saw the heifer, coming toward him, after it had knocked him down.
Defendant concedes that the evidence, viewed in the light most favorable to plaintiff, is sufficient to establish that the Matthews heifer was dangerous and that defendant had knowledge thereof. This being so, it was the duty of defendant to warn plaintiff of the danger, (if plaintiff's injuries were caused by the Matthews heifer) unless plaintiff, also, had knowledge of the dangerous character of the animal. Alexander v. Crotchett et al., 233 Mo.App. 674, 124 S.W.2d 534, 537.
There was testimony on behalf of defendant to the effect that a warning was shouted to plaintiff, in accordance with the well established custom; but the evidence is also to the effect that plaintiff gave no sign of having heard the warning; and it was established without dispute that it was the custom to secure an acknowledgment of warning. Plaintiff denied having received or heard any warning that wild or dangerous cattle were in the pen or sorting alley adjacent thereto.
Defendant contends that there was no substantial evidence tending to prove that the Matthews heifer caused plaintiff's injuries. If it was not the Matthews heifer that caused plaintiff's injuries, then there is no evidence whatever tending to prove that defendant had knowledge of the dangerous character of the animal that injured plaintiff. Defendant was not obliged to give plaintiff warning unless it knew that the animal that caused the injuries was dangerous. If, therefore, this contention of defendant be sustained, plaintiff made no case for the jury. Alexander v. Crotchett, supra.
The accident occurred about 1:30 A.M., July 10, 1945. The evidence clearly proves that the Matthews heifer was delivered to Mr. Bush at 1:20 A.M., she being included in a truck load totaling some twelve head of cattle. The ticket was marked "These cattle are wild," and it, together with the cattle were, by Bush, delivered to Luke with a shouted warning that the cattle were wild. Mr. Matthews, the owner, accompanied the truck to the yards, and was following his three cattle through the yards to see that they were properly handled when the accident occurred. He was near the scene at the time. Defendant's employee, witness Luke, stated that he drove a load of cattle into the pen adjoining the sorting alley and shouted a warning to plaintiff and Brown that the cattle were dangerous; that he shouted a warning because the ticket was marked "wild"; that he drove about twelve head of cattle from the chute to the pen west of the sorting alley and had started back toward the chute when plaintiff was struck. He was only about thirty feet west of plaintiff when he heard an outcry, looked, and saw that plaintiff had been injured.
After having testified to the above facts, Luke was asked:
"Q. * * * after you got down there and saw that Maisch was holding the side of his head, where was that bunch of cattle then? A. It was in the sorting alley, went by him, right in the east end.
"Q. On the east end? A. Yes.
"Q. Was there any mixing of cattle? A. No, sir, there was no cattle ahead.
"Q. Just one bunch or more than one bunch? A. Just one bunch I delivered."
The testimony of Luke, coupled with that of Kellstadt, who drove the truck, Mr. Matthews, and Mr. Bush, constitutes evidence from which the jury could have found that the Matthews heifer was in the group of cattle, one of which injured plaintiff.
Defendant's witness, Brown, was working in the alley with plaintiff when his injuries were received. He admitted, on cross-examination, that he wrote and signed a statement wherein the facts and circumstances surrounding the accident were stated. He identified the statement, which was introduced in evidence without objection, and said that the statement was true. The statement contains the following language:
"* * * I saw a wild heifer coming toward me running very fast. The heifer appeared to me to be very wild and dangerous. When I first saw her she was about 5 to 10 feet away. She started directly toward me with her head down. I gave the gate an awfully hard swing toward her in an effort to stop her. The gate struck the heifer on the right shoulder. The force of the gate striking her a little to the north but she pushed through and ran at Carl. I hollowed `look out' just as the heifer struck him. Carl was knocked down. I helped Carl up. Blood was streaming down his face which was coming out of his ear. Abe Levene was working close and he took Carl to the hospital.
"No one warned us that the wild heifer was coming. I did not hear Hunky Luke call or holler `Look out' or `wild cattle' or anything else. In fact he never gave us any warning at all about wild cattle. The heifer was a white-faced Hereford with horns, weighing about 800 to 900 pounds. She appeared to be a 2-year old. I saw her owner who was a man by the name of Matthews from Kansas. He owned two other cattle, a steer and bull and they were wild too."
Brown testified, in direct examination, to facts conflicting with the purported facts as set out in the written statement. The jury could have believed the facts as stated in the statement, which he admitted were true. Those facts alone constitute substantial evidence tending to prove that plaintiff was injured by the Matthews heifer.
Defendant next contends that plaintiff's contradictory testimony on material issues foreclosed his right to a submission of the case to the jury. It relies on the rule declared in Steele v. Kansas City Southern Ry. Co., 265 Mo. 97, 175 S.W. 177. See also Dempsey v. City Light Traction Company, Mo.App., 256 S.W. 155.
It is contended that plaintiff's testimony, as given at the trial, on several material and vital points, is flatly contradictory of his testimony, as to the same points, given in a prior deposition. Assuming, for the purpose of this ruling, the correctness of defendant's contention as to material variances in plaintiff's testimony, at the trial and in the deposition, the jury alone may decide which version it will believe. Steele v. Kansas City Southern Ry. Co., 302 Mo. 207, 257 S.W. 756. We have recently followed the rule as declared in the last cited case. Wilson v. Kansas City Public Service Company, Mo.App., 238 S.W.2d 73. In the case at bar plaintiff did not reaffirm, on cross-examination, the truth of his testimony given in the deposition, if it can be said that such testimony is flatly contradictory of his testimony at the trial of this cause. See Wilson v. Kansas City Public Service Company, supra. We hold that it was for the jury to determine whether it would believe plaintiff's testimony given in this trial, or that given in his deposition.
As to alleged variances between plaintiff's testimony given on direct examination, and that given on cross-examination, in the instant trial, we hold that there are no such complete, unqualified and unexplained variances as to render his testimony, as to such points, without probative force. Under all the circumstances here shown, the weight of the evidence was for the jury.
Defendant contends that reversible error was committed by the giving of plaintiff's main instruction 1, in that such instruction failed to require the jury to find that plaintiff had no knowledge of the dangerous character of the Matthews heifer. Plaintiff's right to recover, if he had such a right, must rest upon proof that defendant knew of the dangerous character of the animal that injured him, that plaintiff had no such knowledge, and that defendant failed to warn him. Alexander v. Crotchett, supra, 124 S.W.2d at pages 537, 538.
Any right to recover in this type of case must rest upon the superior knowledge of defendant regarding the dangerous character of the animal. Defendant's liability is measured by its liability to plaintiff as an invitee; and if plaintiff had knowledge that the animal was dangerous, then defendant is not liable to him in damages for his injuries. This for the reason that defendant, in such case, owed no duty to warn plaintiff of the danger. Murphy v. Cullers, Mo.App., 241 S.W.2d 13; Stoll v. First National Bank of Independence, 234 Mo.App. 364, 132 S.W.2d 679.
The instruction did not require that the jury find that defendant had no knowledge of the dangerous character of the Matthews heifer, as a condition to his right to have a verdict. There is evidence to the effect that Luke shouted a warning; and plaintiff testified to the effect that he had picked up the tickets on some cattle and was examining same when struck by the heifer. Plaintiff's version of the way the accident occurred varies somewhat from that given by Luke, in regard to what bunch of cattle it was that included the heifer that struck plaintiff. From Luke's testimony it may be inferred that the heifer was in the bunch that he had locked in the pen just before the accident occurred. If so, according to his testimony, the tickets were back of the cattle, at the entrance gate, and the jury might have found, if they had been required to make a finding on that subject, that plaintiff had walked through the cattle to get the tickets and had read them, including the information contained therein of the dangerous character of the heifer; and that he knew the heifer was dangerous before being struck by her.
It is true that plaintiff's theory and version was that he was reading the tickets covering a load of cattle that he had just cleared, or was clearing, when the load including the Matthews heifer came into the sorting alley behind him. However, under the evidence in this case, we think it was reversible error for the jury not to be instructed that, before finding a verdict for plaintiff, they must find that he had no knowledge of the dangerous character of the animal that was responsible for his injuries. Alexander v. Crotchett, supra. The instruction should have covered this phase of the case, since a verdict was directed by it.
The instruction is also criticised because it permits a finding of negligence based on defendant's failure to discover the dangerous propensities of the heifer "by the exercise of ordinary care." In Alexander v. Crotchett, supra, we held that the defendant in that case, Kansas City Stock Yards Company, was not required to make inquiries concerning the dangerous qualities of an animal that it handled when not possessed of any facts, calculated to "put a reasonably prudent person on inquiry." [124 S.W.2d 538.] In the case at bar, however, defendant was given a ticket containing information concerning the dangerous character of the animal. The delivery of this ticket containing said information was pursuant to a well established custom. It was defendant's duty to inspect the ticket and thereby inform itself of the dangerous character of the animal. The instruction is not erroneous in this respect.
Complaint is made of the court's permitting a material amendment of the petition during the trial, and of his refusal to grant defendant a continuance thereafter. Because of our ruling as to instruction 1, the case must be tried again. The point here mentioned will probably not be presented in case there should be a second appeal.
Complaint is also made of the refusal of the court to strike the answers to certain hypothetical questions propounded by plaintiff to medical witnesses. Because of the peculiar circumstances involved in the framing of the hypothetical questions referred to it is very unlikely that this point will again be presented in event there should be a second appeal in this cause.
The judgment should be reversed and the cause remanded for a new trial.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded for a new trial.
All concur.