Summary
observing that fact that an elephant is a wild animal is a matter of common knowledge
Summary of this case from State v. HartmanOpinion
Nos. 29819 and 29820
Decided May 31, 1944.
Negligence — Owner of partially tamed wild animal to exercise ordinary care, when — Question for jury — Whether owner exercised ordinary care in assigning employee to handle elephant — Appeal on questions of law — Reviewing court may not reverse and render final judgment, when — Reversal on weight of evidence — Concurrence of all judges of a Court of Appeals required — Section 6, Article IV, Constitution.
1. Where the general public (including children of tender years) is invited, for a stipulated charge, to ride upon the back of a partially tamed wild animal (an elephant) it is the duty of the owner or possessor thereof to exercise ordinary care, under such circumstances, to prevent injury to persons who accept such invitation to ride.
2. In an action for damages for injury to a child of tender years, in which the undisputed evidence discloses that the elephant was placed in the charge of an employee who was not an animal trainer and who possessed only slight experience in the handling of an elephant carrying passengers upon its back, a question of fact is presented for determination by and is properly submitted to a jury as to whether the owner or possessor of the elephant, even though such owner or possessor be a public charitable institution, exercised ordinary care in assigning such employee to handle and control the elephant while so engaged.
3. Where a judgment based on the verdict of a jury is entered, on appeal therefrom on questions of law, a reviewing court is without lawful authority to reverse such judgment and render final judgment in favor of the appellant unless reasonable minds could arrive at no conclusion except one adverse to the appellee.
4. Under the provisions of Section 6, Article IV of the state Constitution a Court of Appeals is denied authority to reverse a judgment upon the ground that it is against the weight of the evidence, except upon the concurrence of all the judges thereof.
APPEALS from the Court of Appeals of Cuyahoga county.
These cases originated in the Court of Common Pleas of Cuyahoga county, being actions for damages for personal injury. The plaintiff (appellant) in each case is a minor and the actions were brought in the name of John Newman, as their father and next friend.
The issues were made up by amended petitions, answers and amended replies. At the trial, by agreement of counsel and consent of the court, the cases were consolidated for the purposes of trial.
It is alleged in the amended petition of George Newman that the Cleveland zoo is maintained in a public park in the city of Cleveland known as Brookside park; that wild animals are held captive for exhibition purposes; that the defendant was at the time complained of, and for some time prior thereto had been, in control of the animals including an elephant named Osa; that the elephant was a wild animal and although partially tamed retained some of her natural wild propensities to run or stampede when alarmed or excited; that on May 25, 1941, the defendant was engaged in selling rides upon Osa's back, within an enclosure known as the pony track; that plaintiff purchased a ticket for a ride and thereafter while plaintiff was seated in the basket or howdah upon her back, Osa bolted and ran from the track over to the elephant house; that the basket was torn from her back as she entered the elephant house and plaintiff was thrown to the ground and injured; that the defendant was negligent in nine specified particulars; that such negligence was the proximate cause of plaintiff's injury; and that plaintiff was damaged in the sum of $10,000.
The answer admits all of the material allegations of the petition except two: (1) That the accident occurred in the manner set forth; and (2) that defendant was negligent in any particular. By way of a second defense it is alleged that the defendant is a public charitable corporation and that by reason thereof the plaintiff is barred of his action.
In the amended reply it is averred that defendant was not a public charitable corporation insofar as it engaged in the sale of rides on Osa's back; that the elephant was the property of the city of Cleveland and that the defendant had no right to sell rides thereon; that the elephant was in control of men not trained, skilled or competent in the handling of elephants, and wholly unfit for guiding, controlling or driving Osa; and that defendant failed to provide such men with appropriate appliances for controlling or guiding the elephant.
The pleadings and issues in the case of Audrey Newman are for practical purposes the same as in the George Newman case and no useful purpose would be served in an analysis thereof.
The facts are not in serious dispute.
At the trial, before submission of the cases to the jury, the court withdrew all the specifications of negligence except number one, wherein it was charged that the defendant was negligent "in selecting agents and servants to have charge of said elephant during the course of said ride who were not trained or qualified to handle or control said elephant in such an enterprise, nor trained nor qualified to deal with said elephant if it became nervous, excited or uncontrollable."
The cause was submitted to and determined by the jury upon that single issue of fact.
The evidence upon that issue was substantially as follows: Prior to being presented to the Cleveland zoo, the elephant, Osa, was the property of Frank Buck; and she had been used to carry people on her back at the New York World's Fair. The symbol of authority in the control of an elephant is a sharp, curved, pointed instrument commonly known as an elephant hook, and control is exercised by means of sticking the sharp point of the hook into the elephant's ear. The superintendent of the Cleveland zoo, when Osa was received, was a man by name of Wilson, an animal trainer of many years experience, thoroughly familiar with the training and control of elephants. One of his subordinates was a man by the name of Chery, an animal keeper who had no experience as an animal trainer. Some days prior to the date in question a basket or howdah was strapped to Osa's back and Harold T. Clark, chairman of the board of trustees of the defendant corporation, together with some newspaper men, got into the basket and Osa was led around the track by Wilson, accompanied by Chery. Saturday, May 24, 1941, was the first day rides were sold to the public, and on that day Osa was in Chery's charge and made numerous trips around the track carrying passengers upon her back. Nothing untoward happened on that day. The next day at the time in question Osa was in Chery's charge. When the last trip started there were two adults in the front seat and three minor children in the back seat of the two-seated basket or howdah. Wilson was not upon the scene at that time.
We quote the testimony of Chery as to what happened:
"Q. How many were in the carriage at that time when you first started out on that trip? A. When we first started out, I believe there was three children and two grownups.
"Q. Then how far did you go with Osa that time? A. About 25 or 30 feet.
"Q. And what happened then? A. The lady got excited; she started hollering she's sick; she wants to get off. The fellow that was with her asked me to turn around and let her get off, so I turned around and took her back.
"Q. Didn't the lady also say there was something wrong with the elephant? A. Yes, she says she knows elephants very well, and there wag something wrong.
"Q. There was something the matter with her? A. Yes, sir. * * *
"Q. When you went these 25 feet and the lady told you she knows elephants, and there's something wrong, did you turn the elephant around? A. Yes. * * *
"Q. You brought the elephant back to the loading platform and these two parties got off? A. Yes.
"Q. In the replacement of the two, the woman and the man, how many did you get in? A. Three. * * *
"Q. What happened? A. Then the elephant kind of figured maybe the trip was over, I don't know, and she turned around right, she turned around awfully fast and started for her barn. * * *
"Q. When you were up at the front end [of the elephant] you tried to get her started from the platform? A. Yes.
Q. Did you talk to her? A. Sure.
"Q. What happened * * * ? A. She just stood there. All of a sudden she whirled around to the right. I was working around the left, and she turned around to the right.
"Q. Where did she go then? A. She started for her barn.
"Q. Did you take after her? A. Yes.
"Q. Did you catch her? A. I did. I had her by the ear, slowed her up. She knocked the hook off.
"Q. You got the hook on her ear? A. Yes.
"Q. What part of the ear did you get the hook on? A. On top.
"Q. Did the hook take hold? A. No; it was too blunt.
"Q. Too blunt? A. That's right.
"Q. Had you seen hooks for guiding elephants before this that were sharp? A. Sure. * * *
"Q. * * * You say ordinarily when you saw these instruments, the hook was about as sharp as a lead pencil when it is sharpened; and on this occasion the hook that you had was about the same as the rubber end of the pencil? A. That's right.
"Q. When you used your book on Osa's ear, it was too dull to get hold of it? A. When you get it on top of the ear, the point don't get hold of them at all.
"Q. This hook, was it furnished by the museum for you to use? A. That's right.
"Q. Were there any others there for you to use? A. All the same. * * *
"Q. Before Osa started to run on this last run for the barn, did she show any signs of being excited or nervous? A. Well, she might have been excited when she started running away —
"Q. Before she started, did she show signs of being uneasy, nervous and kicking around? A. No, she wasn't kicking around. She might have been a little bit excited. * * *
"Q. * * * Did they ever teach you or instruct you as to handling Osa in case she got nervous and restless, and what to do with her, and how to handle her and control her? A. We handled her the same way at all times; no matter whether they get nervous or not nervous, if you want them to do something you use only one method. Of course, if they get nervous, if you had a sharp hook, you could control them. * * *
"Q. If you had had a sharp pointed hook at the time of this accident, tell us, please, have you an opinion as to whether or not you could have checked Osa? A. Yes, I could have stopped her and had her come down and take everybody off * * *."
Harold T. Clark testified in part as follows:
"Q. When an elephant becomes excitable and nervous, does that require more skill and experience to handle it than one that is docile and not excitable? A. Yes, I would think so. * * *
"Q. Then we are agreed that if the elephant became excitable or nervous it would require a man of some experience and skill to know what to do with him or how to stop him, to prevent him from running, and so forth? A. Yes, sir. * * *
"Q. Then did you give him any instructions as to how to govern the elephant in case it became excited or nervous? A. I did not. * * *
"Q. * * * Was Curly Wilson both an animal trainer and an animal keeper? A. He was both. * * *
"Q. An animal trainer is different from an animal keeper? A. Yes.
"Q. You said Wilson was a trainer as well as a keeper. A. He was both.
"Q. Chery at that time was not a trainer, was he? He was just a keeper? A. I would not regard him as a trainer."
All the quoted testimony was undisputed.
In each case the jury returned a verdict in favor of plaintiff. The court, after overruling identical motions for judgments for the defendant or in the alternative for a new trial, entered judgments on the verdicts.
Each case was appealed to the Court of Appeals upon questions of law and that court entered judgments reversing the judgments of the Court of Common Pleas and rendered final judgments in favor of the defendant (appellant).
The cases are here for review following the allowance of motions to certify the records.
Messrs. Harrison Marshman, for appellants.
Mr. J.R. Kistner and Mr. R.M. MacArthur, for appellee.
In the interest of clarity George and Audrey Newman will be designated as plaintiffs and The Cleveland Museum of Natural History as defendant.
The judgment entries in the Court of Appeals are identical and read as follows:
"This cause came on to be heard upon the pleadings, and the transcript of the record in the Court of Common Pleas, and was argued by counsel; on consideration whereof, the court certifies, that in its opinion substantial justice has not been done the party complaining, as shown by the record of the proceedings and judgment under review, and the judgment of the said Court of Common Pleas is reversed, for the reason that plaintiff failed as a matter of law to establish the liability of the defendant and final judgment is rendered for the defendant, no other error appearing in the record, and this cause is remanded to said Court of Common Pleas. * * * Appellee excepts. Morgan, J. dissents for the reason that the decision of the majority is based upon the weight of the evidence and in his opinion the verdict is not against the weight of the evidence."
For the purpose of our decision we shall assume that the trial court was correct (1) in concluding, as a matter of law, that the defendant was a public charitable corporation in conducting the enterprise here in question and could not be held liable for the negligence of its agents or employees under the doctrine of respondeat superior; (2) in withdrawing from the consideration of the jury all specifications of negligence except specification No. 1; and (3) in charging the jury upon the doctrine of assumed risk. There can be little room for argument upon the proposition that the trial court was correct in concluding that the plaintiffs had the right to have submitted to the jury the one remaining issue that the defendant was negligent. "in selecting agents and servants to have charge of said elephant during the course of said ride who were not trained or qualified to handle or control said elephant in such an enterprise, nor trained nor qualified to deal with said elephant if it became nervous, excited or uncontrollable."
We have pointed out the only evidence in the record as to Chery's qualifications to handle and control Osa while she was carrying passengers upon her back, i. e., one trip around the track while she was being handled by Wilson, and numerous trips on Saturday, the day before the accident, when he (Chery) was in control.
By its verdicts the jury determined that defendant was negligent in selecting an employee, who was not properly trained or qualified to handle and control Osa at the time of the accident.
For the purpose of emphasis we again call attention to part of the language used in the judgment entries of the Court of Appeals. " * * * and the judgment of said Court of Common Pleas is reversed, for the reason that the plaintiff failed as a matter of law to establish the liability of the defendant * * *."
We are in some doubt as to the meaning of the above-quoted language.
The Court of Appeals, upon appeal on questions of law, may render final judgment against the appellee (1) where there is no evidence to sustain the verdict and judgment or (2) where the evidence is such that reasonable minds can come to one conclusion only and that conclusion is adverse to the appellee. (See Jacob Laub Baking Co. v. Middleton, 118 Ohio St. 106, 160 N.E. 629; and Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E. 246.)
That an elephant is a wild animal is a matter of such common knowledge that courts will take judicial notice of that fact.
The general rule as to liability of the owner or possessor of a wild animal is stated in 69 A. L. R., 509:
"The English rule of absolute liability for injuries inflicted by wild animals has been held to apply to an animal belonging to the class of those wild by nature and having the propensity to do mischief, even though the particular animal has been tamed." (See cases cited.)
2 Cooley on Torts (4 Ed.), 322, Section 270, states the rule as follows:
"When wild animals are kept for some purpose recognized as not censurable, all we can demand of the keeper is that he shall take that superior precaution to prevent their doing mischief which their propensities in that direction justly demand of him." (Italics ours.)
No case has been called to our attention which holds that the mere fact that a wild animal has been supposedly tamed relieves the owner of liability for damages caused by such animal. Such a rule would be contrary to both reason and authority.
The defendant was bound to exercise ordinary care to engage and assign a competent employee to handle and control Osa, while she was engaged in carrying passengers upon her back, to prevent her from doing injury to her passengers.
We think the record makes manifest that reasonable minds could arrive at different conclusions upon the question of whether the defendant was guilty of negligence in assigning an incompetent employee to handle and control Osa while passengers were riding upon her back. The jury, the trial judge and one judge of the Court of Appeals arrived at the conclusion that the defendant was guilty of negligence upon that submitted issue of fact and two judges of the Court of Appeals arrived at the opposite conclusion.
Whether the language of the judgment entries of the Court of Appeals means that the court concluded there was no evidence to support these verdicts and judgments or whether it means that the court concluded that upon the evidence adduced reasonable minds could come to no conclusion other than one adverse to the plaintiffs, in either event, we think such holding was error.
In the ordinary course of events we would remand these cases to the Court of Appeals to determine whether the verdicts are manifestly against the weight of the evidence. However Judge Morgan has already determined and held in each judgment entry that, in his opinion, "the verdict is not against the weight of the evidence." By virtue of the provisions of Section 6, Article IV of the Constitution, the two remaining judges of the Court of Appeals are without lawful authority to reverse the judgments and order a retrial upon that ground. Therefore, an order of remand would amount to the doing of a vain thing.
We are of opinion that the judgments of the Court of Appeals should be and hereby are reversed and the judgments of the Court of Common Pleas should be and hereby are affirmed.
Judgments reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, WILLIAMS and TURNER, JJ., concur.