JOHN FICKEN v. FREDERICK S. JONES and G. P. SWIFT, 28 Cal. 618

By the Court, Currey, J. Action to recover damages for injuries which the plaintiff received from a steer belonging to the defendant Swift, while in the charge of the defendant Jones. While driving the steer-through Brannan street, near Sixth street, in San Francisco, hé became affrighted, and afterwards separated from the herd of cattle to which he belonged. In the effort to capture him he became wild and apparently alarmed, and escaped for a time from his keepers, and while at large he ran against the plaintiff, knocking him down and goring him in a terrible manner.

The plaintiff charged in his complaint that the cattle constituting the herd, which consisted of nineteen head, and particularly the steer in question, were wild, untamed and dangerous, of which the defendants had notice.

The plaintiff also averred that the cattle composing the herd were negligently driven by the defendants along certain streets named, without any precautions to restrain or prevent them from attacking and goring people passing along the streets, and that while the plaintiff was lawfully passing along the street between Harrison and Folsom streets, the steer escaped from the herd, and of his “ own vicious instincts then and there attacked, threw down and gored the plaintiff,” describing the injuries done, and alleging that the same were not the result of a want of ordinary care and prudence on the part of the plaintiff, but the result of the defendants’ wrongs and negligence.

These allegations of the plaintiff the defendants controverted. There was no evidence on the trial showing that the cattle were wild, untamed or vicious, nor that the defendants had cause to believe they were so. The question at issue became narrowed down to the point whether Jones, who had charge of the cattle, and the persons assisting him, were guilty of negligence and want of due care in driving the cattle from the place where they were landed to the slaughter house at the outskirts of the city, and also in their endeavor to capture the steer after he became separated from the herd.

Whether the defendants were negligent and careless in the conduct and management of the business in which they were so engaged, was a question in issue, concerning which the parties respectively produced witnesses, who detailed circumstances connected with the matter as they saw and understood them.

To overcome and avoid, in some degree, at least, the force of the evidence on the plaintiff’s behalf, the defendants proposed to prove by a witness on the stand that Jones was a safe and prudent man in the business of driving and conducting cattle through the city; and this evidence was urged especially on behalf of Swift, as competent and material in his defense, as he was sought to be charged -for the alleged negligence and carelessness of his subordinate, Jones; but the Court excluded it on the plaintiffs’ objection that it was incompetent and irrelevant.

The point is made on appeal from the judgment, which passed against the defendants jointly, that this ruling of the Court was erroneous.

In argument, the plaintiff’s counsel admit that the allegation of the complaint of the ferocious'and vicious disposition of the animal, and of consequence any scienter of the defendants of such fact was not sustained; but they say the plaintiff’s grievance is attributable to the negligence of the defendants in driving and handling the animal, upon which fact an issue was distinctly formed and submitted to the jury; and it is argued that if the steer was docile and tractable previous to his separation from the herd, but then, from some temporary cause, became wild and ferocious, the defendants thereupon had notice of the change in his temper, and should have confined him by means which would have effectually prevented his escaping; that the facts show that though the method for securing the beast by tying him to the fence by the side of Brannan street was the proper one, if it had been well done, yet it was so carelessly and ineffectually done as to allow the steer to effect his escape.

That, assuming the animal to have been overheated and feverish, it might be presumed this arose, from negligent and unskilful driving before he became separated from the herd. These were facts, counsel say, which had to be left to the jury, and if they found the defendants guilty of negligence then that became a distinct ground of recovery, and the question as to whether the beast was feroclous and the defendants aware of it, had no connection with the issue.

That was, at first, upon the pleadings, an issue, but it became an abandoned issue by the force of circumstances, and the plaintiff recovered upon the other issue—the one involving the question of negligence. We have thus referred to the argument for the respondent in order that the question before the jury and which they were required to pass upon, may be exhibited in the nude aspect in which it was finally submitted.

It is a matter of importance to understand what is the rule in respect to-the degree of care and diligence which parties engaged in driving cattle, reared in the rural portions of the country, through the streets of a populous town or city must observe and exercise, in order to prevent the happening of injuries to those lawfully in such streets, and necessarily exposed to dangers which they may not have the power to avert, and from which there may be no way of escape.

It is impossible for a person acquainted with the disposition of cattle raised upon farms or in the open country, notwithstanding they may be what are commonly known as tame cattle, to be oblivious to the fact, that when brought into and conducted through the highways of a city, they are apt to become alarmed and excited by the presence of many people and at the sight of new and strange objects, and by the noise and confusion around them on every side.

From such exposure cattle often become wild and difficult of management, and not unfrequently some of them become fierce from fright, if not so before then, and dangerous to people who may not be aware of their presence. In all cases where, by the conducting of any lawful business, the lives and limbs of human beings are placed in peril, the law requires of the proprietors and managers of that business the utmost care and diligence.

The driving of cattle through the streets of a city is attended with danger to persons who are of right there, and who can justly demand that the care, diligence and skill essential to their safety shall be commensurate with the necessities of the case.

It is not impossible that injuries may happen in such cases, even though the utmost care and skill which the law exacts of the managers of such business may have been exercised; and before a person can be condemned in damages by the verdict of a jury the party complaining of an injury resulting from negligence or want of skill in the conduct of that business must establish facts constituting a basis from which the fact in issue may be found.

In the case under consideration the ultimate fact to be found was whether the defendants were guilty of negligence and want of due care, as in substance charged in the complaint. The burden was on the plaintiff to prove, in the first place, that he received the injury for which he sought redress, and that such injury was done by the animal of the defendants described in the complaint, within the City of San Francisco, and that it happened without fault on his part.

These facts proved, afforded rima facie evidence of negligence on the part of the defendants, and then the burden of proof became cast on them to show that the injury did not occur by reason of any default on their part. How was it competent for the defendants to show this in exoneration of themselves of all liability whatever, or by way of reducing the damages ?

This might have been done by showing that the defendant who had the business in charge at the time performed his duty with proper care and skill; and tending to this end it was admissible to show that he was a person of experience in the business, and had therein proved himself to be prudent, careful and of competent skill, and in every respect qualified for the duties which he undertook to perform.

The proof of this, standing alone, might not have been of much force, but as connected with the facts and circumstances that transpired in ■ driving the cattle through the city, and in the endeavor to capture the steer after his separation from the herd, it might properly have had some weight.

As it was incumbent on the defendants, in order to overcome the prima facie case made out against them, to establish that the injury to the plaintiff did not result from want of due care and skill on their part, they should have been permitted to have shown, in the first place, the important fact that Jones was competent, careful and skilful in the conduct and management of that kind of business. It was competent to make such proof because the law exacts of those engaged in the business of driving such cattle through a city, by which lives and limbs of people are imperilled, the utmost care and circumspection.

If it had been proved that Jones possessed the qualities requisite for the business in which he was employed, then it would to that extent have appeared that the defendants exercised due care, though that alone might not have amounted to enough to have exonerated the defendants from all liability. Whether Jones’ assistants was also competent and skilful and of a number reasonably sufficient, under all the circumstances, it may be, might have been a proper subject of inquiry.

In addition to these matters the defendants would undoubtedly have been required to show' what was done in the effort to recapture the animal, and if it had appeared that those engaged in the business were persons of competent skill, care and diligence, the jury, in the first place, would have been apt to have regarded their efforts as comporting with their established character and capacity in the management of such business; and as accidents sometimes happen, notwithstanding the utmost care and diligence may be exercised to prevent them, and damage results from causes which human care and foresight cannot avert, it is not impossible that the jury might have come to the conclusion that the defendants were not at fault in this instance, and therefore not liable in damages to the plaintiff.

The rule of law governing in the case under consideration rests for its foundation in the same principle as that by which the duties and liabilities of the carriers of passengers are governed.

In the one case the proprietor of the business must exercise the care, circumspection and skill which is characteristic of cautious persons where the lives and limbs of human beings are liable to injury from exposure to the fury of excited cattle; and in the other the carrier is to convey his passenger safely and securely; and because of the value of human life and limbs, the law requires the utmost degree of care and skill in the preparation and management of the means of conveyance, and will hold the, proprietor liable for the slightest negligence.

If the passenger sustains injury without fault on his part, by the oversetting of a stage coach, or from a railroad disaster, or the like, such accidents are, in the first place, attributed to the default of the proprietor, and are prima facie evidence of negligence on his part. (Boyce v. California Stage Company, 25 Cal. 467; McKinney v. Niel, 1 McLean, 540; Stokes v. Saltonstall, 13 Peters, 181; Ware v. Gay, 11 Pick. 106 ; Ingalls v. Bills, 9 Met. 6 ; Carpue v. London and Brighton Railway Company, 5 Adol. and Ellis, 747; Ang. on Com.

Carriers, Chap. 11.) In such case it is well settled to be competent for and incumbent on the defendant to show that those in charge of and conducting the business, were persons of good and careful habits and competent skill, and also lyhatever else is necessary to establish the fact of the utmost care and prudence on the deféndants’ part.

The defendants in this case being required by the law to observe and exercise the greatest care and prudence, and reasonable skill, from the beginning throughout in a business which was attended with danger to the people lawfully in the streets of the city, ought to have been permitted to make the proof proposed. Judgment reversed and a new trial ordered. Sanderson, C. J., concurring specially. I concur in the judgment. Mr. Justice Shafter, having been of counsel, did not participate in the decision of this case. Mr. Justice Sawyer expressed no opinion.