Opinion
No. 33528.
February 20, 1939.
1. ANIMALS.
Cattle are "domestic animals," not animals "ferae naturae" whose possessors have absolute duty of preventing their escape.
2. ANIMALS.
Generally, one who possesses or harbors a domestic animal, which he does not have reason to know to be abnormally dangerous but is likely to do harm unless controlled, is liable for harm done by such animal only if he fails to exercise reasonable care to control it and the harm is of a sort normal for animals of its class.
3. ANIMALS.
The rule imposing liability on possessor of domestic animal "which is likely to do harm unless controlled," for harm done by such animal, must be construed in connection with rule that care required of possessor is commensurate with animal's character, and rule that possessor must consider likelihood of ordinarily gentle animals' being dangerous under particular circumstances.
4. ANIMALS.
A railroad which permitted steer in its possession to escape was charged with notice that under the circumstances steer would probably become excited and attack persons, and hence was liable for negligence in permitting steer to escape or not recapturing it.
5. ANIMALS.
The possessor of an animal may not permit it to be on a public highway unattended if he should reasonably anticipate that animal would there inflict injury, and is liable for negligence in permitting animal to be on the highway.
6. ANIMALS.
In action against railroad for personal injuries inflicted by steer which escaped from railroad's possession, railroad's negligence in permitting the escape or not recapturing steer was for jury under evidence.
7. MASTER AND SERVANT.
A railroad that had possession of steer as connecting carrier could not delegate its duty of preventing steer's escape to independent contractor who was loading cattle into car, so as to escape liability for injuries inflicted by steer after escaping.
APPEAL from the circuit court of Warren county; HON. R.B. ANDERSON, Judge.
Dent, Robinson Ward, of Vicksburg, Lucius E. Burch, Jr., and Clinton H. McKay, both of Memphis, Tenn., and E.C. Craig and V.W. Foster, both of Chicago, Ill., for appellant.
Plaintiff's evidence fails to show actionable negligence on the part of the defendant. The court should bear in mind throughout its consideration of this case that the defendant owed this plaintiff no special and no nondelegable duty such as arises from the relationship of carrier and shipper. He was an entire stranger. No such contractual relationship has been or can be alleged or proved. As to him, defendant was neither an insurer nor did it owe plaintiff the duty to exercise the highest degree of care.
3 C.J., sec. 1273.
Before a keeper or owner of a domestic animal may be held liable two things must be shown: first, that there was negligence in allowing the animal to escape and, second, that the owner or keeper knew or should have known of its vicious propensities.
3 C.J., sec. 1242.
In view of all the evidence and the action of the trial court it is evident that the court mistakenly supposed that the mere fact that the animals escaped was itself evidence of negligence per se for which defendant is liable as a matter of law. It is obvious that this action of the court amounts to more than an application of the res ipsa loquitur doctrine, though that doctrine has no application to this case. This court has held that the res ipsa loquitur doctrine should be cautiously applied.
J.C. Penney Co. v. Evans, 160 So. 779, 172 Miss. 900.
The cases of Woodland Gin Co. v. J.C. Moore, 60 So. 574, 103 Miss. 447; and Wheeler v. Laurel Bottling Works, 71 So. 743, 111 Miss. 442, L.R.A. 1916E, 1074, contain further statements by this court indicating clearly that this doctrine should not be applied in a case like the case at bar.
The evidence leaves in the realm of speculation and conjecture the question whether the animal that caused the injury was ever in the care or custody of defendant.
Whatley v. Boolas, 180 Miss. 372, 177 So. 1; Hattiesburg v. Jarreau, 114 Miss. 490, 75 So. 370.
Defendant was entitled to directed verdict at the conclusion of all the evidence because the uncontradicted proof shows that the persons through whose alleged negligence the animal escaped are persons for whose actions the defendant is not responsible.
Y. M.V.R. Co. v. Denton, 133 So. 656, 160 Miss. 850, 284 U.S. 306, 76 L.Ed. 310; Isaacs v. Prince, 97 So. 558, 133 Miss. 195; Sawmill Constr. Co. v. Bright, 116 Miss. 491, 77 So. 316; Carr v. Burke, 183 App. Div. 361, 169 N.Y. Supp. 981.
Dabney Dabney, of Vicksburg, for appellee.
The steer attacking plaintiff was in no sense of the word a domestic animal. If it is classified at all it must fall within the category of ferae naturae.
Ballentine's Law Dictionary, "Domestic;" Thurston v. Carter, 112 Me. 361, L.R.A. 1915C 359, 92 A. 295.
The evidence shows that three of these animals, at least, escaped from the cattle car of this defendant. It shows that these animals were wild and vicious; that they jumped fences or tore them down, and that they attacked or attempted to attack men, women and children who happened to come near them.
Phillips v. Garner, 64 So. 735, 106 Miss. 828, 52 L.R.A. (N.S.) 377.
The legal duty we owe to others is the accepted standard, and that duty is measured by the exigencies of the occasion. The more imminent the danger, the higher the degree of care. As the hazard from the use, or threatened use, of dangerous instrumentalities increases, in all branches of the law, the responsibility of the person employing them becomes stricter and may amount to insurance of safety. When human life is at stake, the rule of due care and diligence requires everything that gives reasonable promise of its preservation to be done, regardless of difficulties or expense.
20 R.C.L., 25.
In Texas P. Ry. Co. v. Juneman, 71 Fed. 939, the court held that one engaged by a railroad company under a verbal contract to remove dead and maimed cattle from the railroad yard, who is paid in the same way and at the same time as laborers generally in the service of the company, and may be discharged in the same way, is not such an independent contractor that the company is exempt from liability for injuries caused by his failure to remove a crippled, but dangerous, steer.
28 A.L.R. 122 and 190.
Argued orally by R.H. Robinson and Lucius E. Burch, Jr., for appellant, and by F.Y. Dabney, for appellee.
On March 7, 1938, a carload of cattle which was being transported from Houston, Texas, to a place in Tennessee was in the appellant's possession at Vicksburg, having come into its possession as a connecting carrier. The cattle were there unloaded into a cattle pen, and early the next morning while being reloaded into the car three of them escaped. Three or four hours thereafter, a steer, without provocation, attacked and gored the appellee, a child, on a public highway just out of Vicksburg. It is clear from the evidence that this steer was of the cattle that escaped from the appellant's car. When the steer left the pen, it ran some distance in the railroad yard, and then into a city street, and from there into and along the public highway to the place where the appellee was gored.
The court below directed the jury to return a verdict for the appellee for liability, and to fix the amount of damages, and it acted accordingly. The appellant complains of this ruling and says that its request for a directed verdict should have been granted.
The appellee says that this steer was a wild animal, ferae naturae, of the character known to be savage and vicious, and consequently the duty of the appellant to prevent its escape from confinement was absolute, in which connection see 3 Rest. Torts, sec. 517. Cattle emerged from the classification of ferae naturae into that of domestic animals centuries ago. Whether a domestic animal may return to the classification of ferae naturae because of the environment in which it was born and has lived is not before us on this record.
The appellant says that the steer being a domestic animal, it is not liable for harm done by it while at large for the reason that it did not know and had no reason to know that it was abnormally dangerous. The rule thus invoked has its limitations and as set forth in Rest. Torts, sec. 518, is:
"Except as stated in Subsection (2) and Secs. 504-5, one who possesses or harbors a domestic animal, which he does not have reason to know to be abnormally dangerous but which is likely to do harm unless controlled, is subject to liability for harm done by such animal if, but only if,
"`(a) he fails to exercise reasonable care to confine or otherwise control it, and
"`(b) the harm is of a sort which it is normal for animals of its class to do.'"
The words "which is likely to do harm unless controlled" must be construed in connection with the comments on the section. Comment e.: "Amount of care required. The care which the keeper of a domestic animal is required to exercise in its custody is commensurate with the character of the animal." Comment g.: "Animals dangerous under particular circumstances. One who keeps a domestic animal which possesses only those dangerous propensities which are normal to its class is required to know its normal habits and tendencies. He is, therefore, required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm." The circumstances here bring the case within this rule. This steer, in the language of the witness, "got excited like any other cows or animals in the yards," and acting according to its nature attempted to and did escape. This excitement necessarily continued when it escaped into unfamiliar surroundings — a railroad yard, a city street and a public road. The nature of cattle is such that the probabilities are that, when laboring under such excitement and while continuing their effort to escape from control, they will attack and injure persons who may be in their way; and the appellant must be charged with notice thereof. The fact here is that this steer attacked other persons before arriving at the place where the appellee was gored, and thereafter when the appellant's employes attempted to capture it, they could only do so by shooting and wounding it so seriously that it died therefrom.
Moreover, this injury to the appellee was inflicted on a public highway, and the rule is that one in possession of an animal is without the right to permit it to be on a public highway unattended if he should have reasonably anticipated that injury would be there inflicted by the animal; and if he is negligent in permitting it so to be on the highway, he will be liable for the damages caused by such an injury. 2 Am. Jur. Animals, sec. 6; 45 A.L.R. 505.
The appellant did not intentionally permit this steer to be at large. Consequently, it is liable therefor only if it was negligent either in permitting the steer to escape from its custody, or in not recapturing it after its escape therefrom, both of which, on the evidence here, were for the determination of and should have been submitted to the jury.
One question remains. The appellant says that when this steer escaped, the cattle were being loaded into the car, not by its employes, but by one under contract with it so to do of such character as to make him an independent contractor. We will not determine from the evidence whether this is true, for if true, the fact would not relieve the appellant from liability. The appellant owed a duty to the public, under the circumstances hereinbefore set forth, to prevent this steer from being at large and could not delegate the performance thereof to another and thereby escape liability for its nonperformance. H. Weston Lbr. Co. v. Hibbens, Miss., 182 So. 115; Texas P. Ry. Co. v. Juneman, 5 Cir., 71 F. 939. Note to Hunsaker v. Chesapeake O.R. Company, 28 A.L.R. 122.
Reversed and remanded.