Opinion
April 1, 1940.
1. — Negligence. In order for plaintiff's negligence to defeat him such negligence must enter into and form the direct producing and efficient cause of the casualty, and absent which the casualty would not have happened.
2. — Negligence. Where veterinary, engaged to vaccinate 59 head of cattle, placed all of cattle together in pen in barn and the cattle, frightened and hurt by needle, so driven as to cause them to crowd upon each other and pile up, or piled up of their own accord by being loosely herded into shed and being pursued by defendant, thereby trampling, crushing and killing 6 head of cattle, veterinary was negligent in continuing vaccination in same manner when he saw effect it was producing upon cattle.
3. — Negligence. Evidence held insufficient to show contributory negligence on part of hired man and plaintiff's father who assisted veterinary in placing cattle in pen for vaccinations, which would bar recovery against veterinary.
4. — Negligence. An instruction that, "Defendant's negligence if any, must be the sole proximate cause whereas plaintiff's negligence, if any, need not be the approximate cause of the injury, for it defeats a recovery if it but contributed directly in any manner, to the injury," is erroneous in that it declares that "defendant's negligence, if any, must be the sole proximate cause."
Appeal from Miller Circuit Court. — Hon. Nike G. Sevier, Judge.
REVERSED AND REMANDED.
Hon. W.S. Stillwell and Leslie B. Hutchison for respondent.
(1) The court committed no error in refusing appellants' instruction No. 4. The cases cited by appellant on this point do not apply to the facts in this case. The evidence shows that the cause of injury to the cattle in question was caused by the sloping condition of the ground at that part of the barn where cattle were assembled, which condition was unknown to respondent; and respondent's plea of contributory negligence is based largely on the fact that the appellant, through her agent, directed and assisted in assembling the cattle at that point knowing the condition while the evidence shows that Ragan was not acquainted with that condition. These facts were set up in the plea of contributory negligence and were sufficient to support the evidence introduced thereunder. A careful examination of all the authorities cited by the appellant, we think, will show that the plea of contributory negligence was not interposed in them, or, if interposed, was not sufficient in form and substance. Appellant cites Ward v. City of Portageville, 106 S.W.2d 497, as supporting her contention that there was no contributory negligence. The court said in this opinion on pages 523 and 524: "When we consider the facts in this case which shows the respondent knew of the condition of the sidewalk, that it was broad daylight at the time, and that the condition of the sidewalk was not a hidden defect, we must conclude that under all the facts and circumstances in the case, that the respondent's contributory negligence was a question of fact to be determined by the jury." In the case at bar Breece had lived on the farm practically all his life, knew the exact condition of the barn and directed that the cattle be put therein. Appellant cites Ballard v. K.C. Power Light Co., 298 S.W. 131, as supporting her contention there was no contributory negligence in the case at bar, but a careful reading of this citation supports the contention of the respondent and not the appellant. If the cattle were under the control of witness Breece and if they were put in the barn at his direction, and he knew of the true condition of the barn, then the ruling in this case, where these facts are applied, would be against the appellant. (2) The court did not commit an error in giving of Instructions (d), (e), and (f) on the part of respondent. These instructions must be taken and considered as a whole, and it will be noted that Instruction (e) requires the jury to find the facts set up in respondent's amended answer alleging contributory negligence on the part of the appellant. Considering the instructions as a whole the jury is not given a roving commission, but are required to find the facts that are set up as acts of contributory negligence. The Instructions (d) and (f) complained of were approved by the St. Louis Court of Appeals in an able opinion written by Judge BLAND, Presiding Judge of that court, in the case of Brewer v. St. Louis Transit Co., 105 Mo. App. 503, l.c. 511 and 512. This case has never been criticised or overruled by any appellate court in this State. (3) There can be no recovery if the plaintiff was guilty of any negligence which contributed directly to the cause of injury. Karle v. Railway, 55 Mo. 476. (4) When the negligence of defendant and plaintiff combined to cause the injury there can be no recovery. Hafner v. Railway, 94 S.W. 391; Porter v. Railway, 97 S.W. 880; Burton v. Railway, 176 Mo. App. 14. (5) Plaintiff's negligence bans recovery under theory of primary negligence. Chawkley v. Railway, 297 S.W. 20. (6) If negligence of plaintiff contributed in any degree, no recovery can be had. 29 Cyc. 511; Halverson v. St. L. Ry. Co., 157 Mo. 216, l.c. 226; 50 L.R.A. 850. (7) No matter how slight may be the negligence of the person injured, provided it contributed to the injury. The law will not attempt to measure the degree. Newcomb v. N.Y. Central Ry. Co., 169 Mo. 409, l.c. 425, 429; 29 Cyc. 511. (8) When danger is known a person is bound to use ordinary care to avoid it and recovery cannot be had when the injured person, by the exercise of ordinary care could have avoided the injury even though defendant was negligent. 29 Cyc. 515. (9) Knowledge of danger in all cases is an important factor for the consideration of the jury, and in many the character of the knowledge and the nature of the danger may be such as to constitute contributory negligence. Swanson v. Sedalia, 89 Mo. App. 121; Harriman v. K.C. Star Co., 81 Mo. App. 124; Stevens v. Walpole, 76 Mo. App. 213; O'Donnell v. Patton, 117 Mo. 13; Matthews v. St. L. Grain Elev. Co., 59 Mo. 474. (10) One cannot recover for injuries sustained by reason of negligence of another when he himself has been guilty of negligence. Pim v. St. L. Transit Co., 108 Mo. App. 713. (11) Defendant's plea of contributory negligence is all that the law requires. Brock v. St. L. Transit Co., 107 Mo. App. 109, l.c. 112; Hedrick v. Mo. Pac. Ry. Co., 195 Mo. 104, l.c. 110; Simonton v. Transit Co., 207 Mo. 718, l.c. 720. (12) Defendant's Instructions (c) and (e) properly declare the law on contributory negligence. Gale v. Mo. Car Foundry Co., 177 Mo. 427, l.c. 454; Kaminski v. Tudor Iron Works, 167 Mo. 462, l.c. 467, 468; Rice v. Wabash Ry. Co., 92 Mo. App. 35, l.c. 40; Hall v. Huber, 61 Mo. App. 384, l.c. 386; Brewer v. St. L. Transit Co., 105 Mo. App. 503. (13) Instruction (f) properly declares the law. Hornstein v. United Ry. Co., 97 Mo. App. 271, l.c. 278; Schaabs v. Woodbum Servan Heel Co., 56 Mo. 173, l.c. 174; Brewer v. St. L. Transit Co., 105 Mo. App. 503. (14) Instruction (g) is good. Groom v. Kavanaugh, 96 Mo. App. 361, l.c. 365. (15) The negligence charged to plaintiff in directing that the cattle be put in barn where ground was sloping for the purpose of vaccination was the sole proximate cause of the injury. 45 C.J. 943, sec. 502. (16) One who fails to take precautions which he might have taken to protect his property from injury resulting from the negligence of another, the danger from which he was fully aware, is guilty of contributory negligence. A man has no right to invite peril, or to run into danger. 45 C.J. 945, sec. 505. (17) Even though the verdict in this case was against the weight of the evidence, and respondent does not concede that to be true, the appellate court would not have the right to disturb the verdict on that ground. That duty rests on the trial court. State v. Hoffman, 132 S.W.2d 27, l.c. 28.
Claud D. Hall, Wm. H. Allen and Charles D. Snodgrass for appellant.
(1) Plaintiff's refused instruction No. 4 (Abs. 58), withdrawing the issue of alleged contributory negligence on the part of plaintiff, by reason of her father assisting in assembling the cattle, should have been given. (a) There was no proper plea of contributory negligence and no evidence upon which to base it. (b) For any negligence of Mr. Breece in assembling the cattle (but we claim there was none) did not enter into and form the direct, producing and efficient cause of the death of the cattle. Alyea v. Junge Baking Co., 207 Mo. App. 687, 230 S.W. 341; Hiers v. Letts Melick Gro. Co. (Mo.), 296 S.W. 408; Bobos v. Krey Pkg. Co., 317 Mo. 108; Rooney v. St. Louis-S.F. Ry. Co. (Mo. App.), 286 S.W. 153; Conrad v. Hamra (Mo. App.), 253 S.W. 808, 220 Mo. App. 273; Cox v. St. Louis S.F. Ry. Co. (Mo. App.), 9 S.W.2d 96; Nordman v. Jahn Bakery Co. (Mo.), 298 S.W. 1037. (c) The work of assembling the cattle by Mr. Breece was too remote from the negligent acts of the defendant, Ragan, which caused the cattle to stampede, pile up and be killed, and the acts of Mr. Breece could not bar recovery. Failure to protect one's property from the negligence of another is not contributory negligence. Stone v. Hunt, 114 Mo. 66. (d) There was no evidence that Mr. Breece was agent of his daughter, Florence Breece, in connection with the assembling and vaccinating of the cattle, as he had no part in the physical vaccination of the cattle. The defendant Ragan, being in sole charge thereof, no act of Mr. Breece would bar recovery. (2) Defendant's Instruction No. (d) was erroneous: (a) Because it submitted to the jury the issue of contributory negligence in general, and not the specific acts of negligence alleged as to G.W. Breece in the answer of defendant. Garvey v. Ladd (Mo. App.), 267 S.W. 727; Hensley v. Kansas City Ry. Co. (Mo. App.), 214 S.W. 287; Meredith v. Claycomb (Mo. App.), 216 S.W. 794; Benjamin v. Met. Street Ry. Co., 245 Mo. 598, 151 S.W. 591; Neal v. Curtis Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543; Schide v. Gotschick (Mo. App.), 43 S.W.2d 877; Bullmore v. Bleer (Mo. App.), 33 S.W.2d 161; Rucker v. Alton R.R. Co. (Mo.), 123 S.W.2d 24. (b) Instruction (d) was erroneous in telling the jury, in the second from last paragraph thereof, that negligence of the defendant must be the sole cause of the injury, whereas plaintiff's negligence, if any, need not be the proximate cause of the injury to defeat a recovery. It is not necessary that the defendant's negligence be the sole cause of the injury for the defendant to be liable. Brannon v. City of St. Louis, 92 Mo. 482, l.c. 486-487; Ford v. Wabash Ry., 318 Mo. 723, 300 S.W. 769; Ballard v. K.C. Power Light Co., 221 Mo. App. 1116, 298 S.W. 131; Ward v. City of Portageville, 106 S.W.2d 497; Henry v. First Natl. Bank, 115 S.W.2d 121; Mattingly v. Broderick, 225 Mo. App. 377, 36 S.W.2d 415; Fawkes v. Natl. Refining Co., 341 Mo. 630, 108 S.W.2d 7. (c) This instruction erroneously told the jury that plaintiff's negligence, if any, need not be the "proximate cause of the injury" for "it defeats a recovery if it but contributed in any manner to the injury." Sento v. Security Bldg. Co. (Mo.), 99 S.W.2d 1, l.c. 7; Perkins v. K.C. So. Ry. Co., 329 Mo. 1190, 49 S.W.2d 103; Hires v. Letts Melick Gro. Co., 296 S.W. 408; Harrington v. Dunham, 273 Mo. 414, 202 S.W. 1066; Conrad v. Hamra, 253 S.W. 808. (d) The instruction erroneously submitted an issue of concurring negligence and not to the specific act of negligence of G.W. Breece set up as contributory negligence in the defendant's answer. Garvey v. Ladd (Mo. App.), 266 S.W. 727; Benjamin v. Met. Street Ry. Co., 245 Mo. App. 598. (e) The instruction was a "roving commission" and failed to advise the jury or point out in any way what acts or omissions on the part of plaintiff, if any, would constitute contributory negligence. Pearrow v. Thompson (Mo.), 121 S.W.2d 811, l.c. 814, 815; Schide v. Gotschick, 329 Mo. 64, 43 S.W.2d 777; Clason v. Lenz, 332 Mo. 1113, 61 S.W.2d 727, 730; Bobos v. Krey Packing Co., 317 Mo. 108, 296 S.W. 157; Owens v. McClary, 313 Mo. 213, 281 S.W. 682; Hanke v. St. Louis (Mo.), 272 S.W. 933; Lunsford v. Macon Pro. Co. (Mo. App.), 280 S.W. 781. (f) This instruction was further erroneous in submitting the issue of concurring negligence when there was no evidence of such. Though a person may expose himself to injury, he may recover if the injury is more immediately caused by the defendant's negligent failure to avoid injury. Barr v. Mo. Pac. R.R. Co. (Mo.), 37 S.W.2d 927; Potter v. St. Louis-S.F. Ry. Co., 136 Mo. App. 125; Crawford v. Kansas City Ry. Co., 215 Mo. 394. (3) Defendant's Instruction (e), to the effect that if Mr. Breece, the plaintiff's agent, directed Barnett to drive the cattle from the pasture to the barn, and was present and assisting in putting the cattle in the barn and vaccinating them, and that Mr. Breece was familiar with the size and condition of the barn, and the defendant was not, and if Mr. Breece made no objection to placing the cattle in the barn, and as soon as defendant discovered there were any cattle down he immediately informed G.W. Breece, and that defendant then and there stopped vaccinating the cattle, the jury should find for the defendant, was erroneous. (a) Because Mr. Breece was not vaccinating the cattle. Defendant alone was in the enclosure with them and vaccinating them, and under the evidence Mr. Breece was not plaintiff's agent in vaccinating the cattle. This instruction also refers to certain acts of Wilford Barnett in driving cattle into the barn, and treats the same as contributory negligence on the part of the plaintiff. There was no allegation in the defendant's answer of any negligence on the part of Wilford Barnett or of G.W. Breece ordering Barnett to drive the cattle to the barn. All of these issues were erroneously submitted, because there was no pleading or evidence upon which to base them. Bullmore v. Beeler (Mo. App.), 33 S.W.2d . . .; Watts v. Moussette (Mo.), 85 S.W.2d 487; King v. Reith (Mo.), 108 S.W.2d 341. (b) This Instruction (e) was further erroneous because it told the jury that if as soon as the defendant discovered the cattle down he immediately informed G.W. Breece, and that the defendant then and there immediately stopped vaccinating these cattle, and the jury found these facts, they should find for the defendant. This part of the instruction was erroneous because it should have informed the jury that after defendant discovered, or by the exercise of reasonable care on his part could have discovered, that the cattle were being frightened and were likely to pile up, or were piling up on each other, and were likely to be maimed or killed, that he immediately stopped going among and vaccinating them, etc., then they should find the issues for the defendant. Stewart v. Metropolitan Street Ry. Co. (Mo.), 188 S.W. 198, l.c. 199. The rule requiring one to discover danger or peril of another is not confined to public places. Powell v. Brosnahan (Mo. App.), 115 S.W.2d 140. (4) The defendant's Instruction (f), to the effect that if the injuries complained of were caused by the mutual and concurring negligence of the plaintiff's agent, G.W. Breece, if they find G.W. Breece was her agent, and the defendant, and the injury would not have been caused if the negligence of one would not have concurred with the negligence of the other, was erroneous because the question of general contributory negligence and not the specific acts of negligence on the part of G.W. Breece set up in the defendant's answer. Pearson v. Thompson (Mo.), 121 S.W.2d 811, 814; Bollmeyer v. Eagle Mill Elevator Co. (Mo. App.), 206 S.W. 917; Harrington v. Dunham, 237 Mo. 414; Miller v. Engle, 185 Mo. App. 558, l.c. 580-581; Meily v. St. Louis S.F. Ry. Co., 215 Mo. 567, l.c. 588; Gillespie v. Pryor (Mo. App.), 204 S.W. 835. (a) This Instruction was further erroneous in submitting the question of the negligence of G.W. Breece to the jury as contributory negligence on plaintiff's part, when there was no evidence upon which to base it. There was no evidence of any negligence on the part of G.W. Breece that could be considered contributory negligence on plaintiff's part. The evidence on this question was so clear that the minds of reasonable men cannot differ on this question. Therefore, the question of contributory negligence based on anything that G.W. Breece did should have been withdrawn in plaintiff's offered instruction No. 4, which was refused, and the same question of contributory negligence should not have been submitted in the defendant's Instructions (d) (e) and (f). (5) The errors in giving the defendant's Instructions (d), (e) and (f) were prejudicial to the plaintiff and the cause should be reversed by reason thereof. Pearrow v. Thompson (Mo.), 121 S.W.2d 811, l.c. 815. Error in giving instructions is presumed to be prejudicial unless the record shows that the substantial rights of the complaining party were not materially affected. Aronoritz v. Arky (Mo.), 219 S.W. 620; Collett v. Kuhlman, 243 Mo. 585-591. (6) A veterinary surgeon is required to use such reasonable skill, diligence and attention as may be ordinarily expected of persons in that profession; in other words, such care and diligence as a careful and trustworthy veterinary would be expected to exercise. Staples v. Steed, 167 Ala. 241; Connor v. Winton, 8 Ind. 315; Bissell v. York, 108 Mo. App. 272.
This is a suit for damage, brought by Florence Breece, plaintiff, v. E. Oliver Ragan, defendant. Jury trial resulted in a verdict and judgment for defendant. Plaintiff appeals. We will refer to the parties as plaintiff and defendant, as they were known below.
The undisputed facts are that plaintiff was the owner of a farm and of a herd of some 59 head of cattle kept thereon. Plaintiff, a lady, taught school and lived in St. Louis county, but came home on occasions for brief visits and inspection of her farm and property. Plaintiff's father, George Breece, lived on the farm but was old, fragile, and did not work except for occasional feeding of the stock, and the doing of odd jobs; but he was generally in charge of the farm during plaintiff's absence. Plaintiff, at the time of the damages complained of, employed one Barnett, as a farm hand, and he did the field work and other general work of the farms. A few days prior to November 4, 1937, plaintiff visited her farm and learned that many cattle were dying, in the locality, of a disease known as "bloody murrain," although plaintiff's herd was not infected. She called defendant, who held himself out to be a skilled veterinary surgeon and doctor of ailing live stock, and told him she wanted him to vaccinate her cattle as a preventive of the above disease. This the defendant agreed to do. Plaintiff further told him that she would order the serum and that same would be at her farm when he arrived to do the work. On or about November 4, 1937, defendant arrived at the farm and informed George Breece that he was there to vaccinate the cattle. Breece told him that plaintiff had informed him that defendant was coming for that purpose, and that the serum had arrived. Thereupon Breece called Barnett from the field and told him to drive the cattle to the house and put them in the barn; that they were to be vaccinated. Barnett drove the cattle up, some 59 head, including calves, yearlings and grown cattle, and he, Breece, and defendant, drove them into the barn. The barn consisted of two log structures separated by a ten or twelve foot passageway. The whole was surrounded by a shed, through an opening of which, on the south side, the cattle were driven. As they passed around through the shed along the east, north and west sides of the shed, defendant caught and vaccinated several calves, which were driven out. A rope was stretched from one of the log barns, inside the inclosure, across to the other log structure, thus forcing the cattle into the west end of the shed, a space about twelve feet by twenty-seven feet, and the south side of said shed, west of the log structure farthest west, was blocked by a mound of hay. Across the east end, or opening, there was a gate, which Barnett closed and guarded, and through which he would permit vaccinated cattle to escape from time to time. Breece stood between the log structures, on the south side of the rope, and may or may not have been able to see what took place during the actual vaccination of the cattle. Barnett could see the details of the operation.
The shed sloped, from the gate to the west end thereof, about one foot. Defendant entered the shed, among the cattle, and, while they were loose in the inclosure, began to vaccinate them by jabbing a hypodermic needle in their necks or shoulders. The cattle crowded to the lower end of the shed and climbed on top of each other, which fact defendant observed. After a time defendant saw the legs of a prostrate animal protruding from under the packed mass of cattle, and ordered the cattle released. When they were released it was found that six cattle were dead from the effects of having been trampled, crushed and smothered by the mass of the others.
Defendant contended below, and contends here, that he is absolved of liability because Mr. Breece, the agent of plaintiff, was guilty of contributory negligence. Plaintiff contends that defendant's answer failed to raise a proper issue of contributory negligence because it failed to allege facts sufficient to show that Breece actively participated in frightening and stampeding the cattle, which was, under all of the facts in evidence, the proximate cause of the damage.
The evidence is undisputed, and virtually conclusive, to the effect that all that Breece did was to assist in the assembling of the cattle in the barn. Defendant alone, by his own testimony, was the only person inside the pen where the cattle were being vaccinated. Neither Breece nor Barnett ever entered the pen. Neither of them did anything whatever to cause the cattle to become frightened or to mill about and climb on top of each other, which was the proximate and effective cause of their being killed. The only negligence, if any it was, that Breece and Barnett were guilty of, was in placing the cattle in the barn. But that was not what caused the damage, according to all of the testimony. "In order for plaintiff's negligence to defeat him such negligence must `enter into and form the direct producing and efficient cause of the casualty, and absent which the casualty would not have happened.'" [Alyea v. Junge Baking Co., 207 Mo. App. 687, l.c. 690.] As to what actually caused the damage, there is no conflict in the evidence. It was the fact that the cattle were frightened and hurt by the needle and so driven as to cause them to crowd on each other and pile up, or they piled up of their own accord by being herded loosely into a shed and being pursued by defendant. Neither Breece nor Barnett was in the shed where defendant undertook to use his own method of getting the cattle vaccinated. He was in charge of the operation, hired as a skilled surgeon for such purpose, and he could have handled it in any manner he saw fit. At least no one attempted to tell him how to do it. When he saw the effect he was producing on the cattle, as he could have seen, and as he himself said that he did see, he should have adopted a different method, or he should have, temporarily designated. At any rate he was negligent in continuing in the manner he did continue, in face of what he could see was happening under the procedure which he had adopted.
Plaintiff complains of many errors in the wording of Instruction D. The instruction is erroneous in several respects. Among other things it provides: "Defendant's negligence if any, must be the sole proximate cause whereas plaintiff's negligence, if any, need not be the approximate cause of the injury, for it defeats a recovery if it but contributed directly in any manner, to the injury." (Italics ours.) A similar instruction was condemned by the Supreme Court in Hires v. Letts Melick Grocery Co., 296 S.W. 408, l.c. 410, 411; Cento v. Security Building (Mo.), 99 S.W.2d 1, l.c. 7.
The instruction is erroneous in that it declares that "defendant's negligence, if any, must be the sole proximate cause." Such language was condemed in King v. Rieth (Mo.), 108 S.W.2d 1, l.c. 5. The instruction is also bad for other reasons; but we think that, in the event of a new trial, such error will not again appear, in view of the fact that new instructions will be drawn after study of the cases. We call attention to the language used in Pearrow v. Thompson (Mo.), 121 S.W.2d 811, l.c. 815.
Plaintiff's criticisms of defendant's Instruction (e) have, in large measure, been ruled in passing on defendant's Instruction (d), above. We see no good reason to reiterate and elaborate on what we have said in that connection.
Defendant's Instruction (f) is erroneous for the reason stated in Pearrow v. Thompson, supra, l.c. 815. The instruction there condemned is strikingly similar to the one here discussed.
Because of errors in instructions given for defendant, as above discussed, the judgment is reversed and the cause is remanded. Campbell, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed and the cause is remanded. All concur.