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 .