Opinion
April 23, 1929.
May 13, 1929.
Negligence — Animals — Known vicious habits — Burden of proof — Evidence
1. In an action to recover damages for injuries caused by an animal, the burden of proving negligence is on the plaintiff; he cannot recover on proof of the mere happening of the accident.
2. In an action for personal injuries alleged to have been caused by a steer which had escaped from defendant's truck, the plaintiff cannot recover unless he shows (1) negligence on the part of the defendant, (2) that the animal was of vicious propensities known to defendant and (3) that the steer which caused the injuries was in fact the steer which had escaped from the defendant's truck.
Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Appeal, No. 178, Jan. T., 1929, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1926, No. 7687, refusing to take off nonsuit, in case of Richard Rennie v. M. Schepps and West Philadelphia Stockyard Co., Inc. Affirmed.
Trespass for personal injuries. Before KUN, J.
The opinion of the Supreme Court states the facts.
Nonsuit, refusal to take it off. Plaintiff appealed.
Error assigned, inter alia, was refusal to take off nonsuit, quoting record.
Robert M. Bernstein, with him John V. Horan, for appellant.
Theodore F. Jenkins, for appellee, was not heard.
Argued April 23, 1929.
This case involves a curious accident. On March 17, 1926, about 3:30 P. M., plaintiff was driving his automobile upon the streets of a part of Philadelphia known as Richmond, when, to quote from plaintiff's statement of the facts, a large steer "butted into the side of [the car], went to the rear and again butted [it]; then __________ made another lunge, knocking the car clear off its wheels and on one side. The steer made a [final] lunge against the front of the car __________ and then went down the street." Plaintiff was injured; he brought an action of trespass against defendant Schepps and the West Philadelphia Stockyard Company, alleging that "defendants were guilty of negligence in leading or driving said [steer] over and upon the public highways without properly securing, attending and controlling [it], well knowing that said [steer] was an animal of vicious propensities." So far as the last allegation goes, plaintiff did not prove the scienter; and as to the first allegation, plaintiff failed to prove negligence.
The evidence showed that Schepps had a contract with the other defendant under which it delivered cattle, purchased by him, at his place of business. On the day in question, the stockyard company brought to Schepps, in one of their trucks, seven dehorned steers, but the street leading up to his yard was too narrow to permit delivery directly upon the premises. While the animals were being taken from the truck through this street (a distance of about 50 feet), one of them "bolted and ran away"; Schepps had, in charge of the transfer of the steers from the auto truck to his yard, himself, two employees, and the two men who came on the truck. He immediately sent his two men in an automobile in pursuit of the fleeing steer, but before they could catch up with it, the accident had happened.
There was no evidence whatever to show carelessness on the part of those in charge of the transfer of the steers, and we agree with the view expressed in the following excerpt from the opinion of the court below: "The burden of proving negligence in a case of this sort is no different from that in any other negligence case, except [in cases where] the doctrine of res ipsa loquitur is applied, and this is not one of them; plaintiff cannot recover on the mere happening of the occurrence; he must present some proofs from which negligence can fairly be inferred." We may add that, while we have assumed the steer which butted plaintiff's car was the one which escaped from defendants, yet, in point of fact, even that fact was not proved.
The order refusing to remove the nonsuit is affirmed.