BRISCO et al. v. LAUGHLIN. (Kansas City Court of Appeals. Missouri. Jan. 22, 1912.)

Appeal from Circuit Court, Bates County; C. A. Denton, Judge.

In an action for the killing of a dog, where defendant answered, alleging that the dog had recently killed sheep and was approaching defendant's sheep when killed, and plaintiff replied, alleging that he had an agreement with defendant whereby his dogs were to be allowed to run at large on defendant's premises, and he was to be liable for double damages for injury they might cause, an instruction, telling the jury that if they believed from the evidence that the killing of the dog was wrongful, and done without good cause, they should find for plaintiff, was error, because submitting to the jury the principal issue of law in the case. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 477-479; Dec. Dig. § 199.*] 2. TRIAL (§ 296*)-INSTRUCTIONS-CURE OF ERRONEOUS INSTRUCTIONS BY OTHERS. In an action for the wrongful killing of a dog, an erroneous instruction submitting to the jury the question of law as to whether the killing was wrongful was not cured by an instruction charging that if defendant had an arrangement with plaintiff whereby his dogs might run on his premises, and, if they did any damage, plaintiff should pay double the damages, verdict should be for plaintiff.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 705-713; Dec. Dig. § 296.*]

3. TRIAL (§ 252*)—ACTIONS-INSTRUCTIONS

APPLICABILITY TO EVIDENCE.

In an action for the killing of a dog, where the owner claimed that he had an arrangement whereby the dog might run upon defendant's premises, and the evidence only showed that the defendant agreed that the owner might chase wolves on his farm with the dogs, an instruction that, if the owner of the dog had an arrangement whereby his dogs were allowed to run over defendant's farm, verdict should be for the owner, was erroneous, as submitting a false issue.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 596-612; Dec. Dig. § 252.*]

Silvers & Silvers, for appellant. W. O. Jackson and Silvers & Dawson, for respondents.

BROADDUS, P. J. This is an action to recover damages for the killing of plaintiffs' dog. The answer of defendant consisted of a general denial, and for further defense as follows: "Further answering, defendant states: That the plaintiffs are the owners of a pack of dogs, of which the dog described in the petition was one, that had for some time prior to the killing of the dog described in the petition been engaged in chasing and killing the sheep of the defendant on his farm in Bates county, Mo. That the dog which was shot was at the time on defendant's farm, and had been recently engaged in chasing and killing sheep belonging to defendant, and at the time it was shot and killed was discovered on defendant's farm aforesaid in close proximity to defendant's sheep on said farm, and was sneaking and crouching toward defendant's ewes kept for breeding purposes, with every indication that it intended to kill some of said sheep, and while thus engaged on defendant's premises, and several miles from the premises of plaintiffs, was killed." The plaintiffs filed a general denial of the allegations of the matter of defense in defendant's answer, and further substantially to the effect that they had prior to the time when the dog was killed made an arrangement or agreement with defendant whereby the dogs of plaintiffs were to be permitted to run at large

In an action for the unlawful killing of a dog, where it was not contended that dogs were not property, an instruction that dogs were property under the laws of the state was erroneous, being upon a matter not in issue.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 587-595; Dec. Dig. § 251.*]

5. APPEAL AND ERROR (§ 1066*)-REVIEWHARMLESS ERROR.

In an action for the killing of a dog, an instruction that dogs were property under the law of the state is not reversible error, though there was no contention that dogs were not such property.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*] 6. WITNESSES (§ 379*)-IMPEACHMENT.

In an action for the killing of a dog, where a witness testified that plaintiff's dogs had chased sheep on his land, evidence that the witness had expressed the belief that the dogs had been of value to him at a past time was inadmissible for the purpose of impeachment, because not inconsistent with the witness' present testimony.

[Ed. Note.-For other cases, see Witnesses, Dec. Dig. § 379.*]

damage was done by such dogs while engaged in running at large on defendant's premises, plaintiffs were to pay double damages, and that the defendant was not to kill the dogs of plaintiffs.

The undisputed facts are that the plaintiffs and defendant lived on farms about seven miles distant from one another; that the plaintiffs were the owners of about 15 hounds, among which was the one in controversy; that these dogs were kept for the purpose of chasing wolves that infested the neighborhood; and that defendant was engaged in raising sheep on his farm. It was shown that the defendant did not kill the dog, but that it was killed by a man in his employ, and that he was authorized by defendant to do so, as he had a standing offer to pay $2 for every dog that was killed on his farm. It was admitted that defendant gave plaintiffs permission to hunt wolves with dogs on his farm, but the parties differ as to the extent of the permission. The

plaintiffs contend that it was part of the agreement that, if their dogs did defendant any injury, they were to compensate him therefor in double damages. The defendant's contention was that the permission was given for the dogs to chase wolves on his farm only when accompanied by the owners. According to defendant's evidence, the dog was alone, and seemed to be approaching defendant's sheep in such a manner as to indicate that he was going to attack them when he was shot and killed. There was testimony to the effect that some of defendant's sheep had been killed by animals of some kind, and that during the past year plaintiffs' dogs had been running some of defendant's stock, but there was no direct evidence tending to show that they had killed any of his sheep. Some had been killed, but it was not shown whether they had been killed by dogs or wolves. But there was evidence that they had chased the sheep of other persons, and would have caught them had they not been interfered with. Defendant offered to show by a witness that he heard dogs in his pasture one night, and that on the same night he lost some sheep that had been killed by dogs. Upon objection the offer was excluded. E. Laughlin, defendant's brother, testified that plaintiffs' dogs had chased sheep on his premises. He was asked if at a certain time he had not expressed the belief that the dogs had been of value to him. He said not. Respondent was called, and testified over defendant's objection that he had so expressed himself to him. Some unimportant and irrelevant testimony was offered by defendant and rejected by the court, and other competent evidence not herein noted was, received by the court over defendant's objections. The value of the dog was proved by a number of witnesses. The jury returned a verdict for the plaintiff in the sum of $32.25. From the judgment defendant appealed.

[1] Three instructions were given for the plaintiffs, all of which the defendant challenges as not stating the law of the case. Those given at the instance of defendant we think properly declared the law upon his theory of the case. Instruction 1 for plaintiffs is as follows: "The court instructs the jury that if they find and believe from the evidence that defendant directed or induced Hubert Keith, while in the employ of defendant, to kill plaintiffs' dog, such act was the act of the defendant; and, if they further find and believe from the evidence that such act was wrongful and done without good cause, then your verdict should be for the plaintiffs in such sum as you shall be lieve from the evidence the dog was reasonably worth at the time of the killing." The criticism to the instruction is that it left to the jury to determine as a question of law what was wrongful and without good cause. The instruction is certainly defective in the

respect mentioned. But respondents contend that the defect was remedied by instruction 4 given for plaintiffs and by those given for defendant.

Instruction 1 was certainly defective because it left to the jury as a question of law to say whether the act of defendant was wrongful and without good cause. Usually, use of the words could do no harm, as a jury would readily understand their purport. But here the words were entirely inappropriate unless their meaning was defined, for they related to the real issue of the case; that is to say, did the defendant kill or cause the dog to be killed while he was chasing or threatening to chase defendant's sheep, and, if he was, whether the act was or was not wrongful and without good cause under the pleadings. The plaintiffs' reply was to the effect that defendant under the agreement had no right to kill the dog, whether he was chasing sheep or not, while defendant's pleading was that he had the right to kill the dog notwithstanding the agreement, as it did not preclude him from killing it, if it was found chasing sheep while unattended by plaintiffs.

[2] Instruction 4 given for plaintiffs did not cure the defect. In fact, it made it worse, if possible. It told the jury if they found that defendant shot or caused the dog to be shot, "and that prior thereto he had an arrangement with plaintiffs that their dogs should run on his premises, and if they did any damage they would pay him double the damage done by the dogs," then the jury should find for plaintiffs.

[3] This instruction presented a false issue to the jury. Notwithstanding plaintiffs pleaded such contract, it was not sustained by the evidence. It was only shown that defendant agreed that plaintiffs might chase wolves on his farm with their dogs, not that they were to be permitted to chase wolves on his farm unattended. Whereas the issue was one presented by the plaintiffs' pleading it was not sustained by any evidence and was in that respect misleading. The defendant's instructions presented the case to the jury on the theory that if plaintiffs' dog, while unattended, was chasing his sheep or threatening to do so, he had a right to cause it to be killed. The two sets of instructions are irreconcilable, and that of plaintiffs misleading and not applicable to the facts shown in the evidence.

[4] No. 6 given for plaintiffs is also objected to by defendant. It reads as follows: "The court instructs the jury that under the laws of this state dogs are held and considered to be property, and, as such, are entitled to the same protection and consideration as other property." This instruction should not have been asked or given. was wholly unnecessary, even if it had contained a proper declaration of the law. There was no dispute between the parties

It

[5] It was not such an error, however, standing alone, that would authorize a reversal.

[6] The admission of the evidence for impeaching E. Laughlin was incompetent because it was not inconsistent with his evidence before the jury.

Other objections to the admission and rejection of evidence we do not think are well taken.

which was then about 155 feet from the place of the collision and 200 feet from a point directly in front of the firehouse door, and within plain view of the hose wagon, which began to cross the street in a direction slanting toward the car. Both plaintiff and the driver saw the car when they left the hosehouse, and neither looked again until they reached the track, when they saw that a collision was probable. Held, that the motorman was negligent in not stopping or controlling the street car upon hearing the gong and seeing the hose wagon.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 190-192; Dec. Dig. § 90.*]

The burden is on one suing for injuries caused by collision with a street car to show that his injuries were directly caused by the motorman's negligence.

[Ed. Note.-For other cases. see Street Railroads, Cent. Dig. §§ 227, 228; Dec. Dig. 8 112.*]

2. STREET RAILROADS (§ 98*) — INJURIES CONTRIBUTORY NEGLIGENCE.

One injured by the collision of a street car and a wagon cannot recover against the company if he was himself negligent.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 204-209; Dec. Dig. § 98.*] 3. TORTS (§ 2*) - ACTIONS - WHAT LAW GOVERNS.

The law of the state where the personal injuries were received controls in an action brought in another state to recover for such injuries.

[Ed. Note.-For other cases, see Torts, Cent. Dig. § 2; Dec. Dig. § 2.*]

4. STREET RAILROADS (8_85*)-INJURIES ON STREETS-INJURIES TO FIREMEN-COLLISION WITH STREET CAB-DUTY OF STREET CAR COMPANY.

While, as a rule, pedestrians, drivers, street cars, and other users of the streets have equal right to the use, city firemen engaged in fighting a fire or on their way thereto are entitled to a right of way over street cars and other users of the streets.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. 88 193-195; Dec. Dig. § 85.*1 5. STREET RAILROADS (8_98*) — INJURIES_TO TRAVELERS-USE OF STREETS - CARE RE

QUIRED.

Persons crossing a street car track must employ their senses for their own protection until they are across.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 204–209; Dec. Dig. § 98.*] 6. STREET RAILROADS (§ 90*) - INJURY TO TRAVELER-NEGLIGENCE.

Plaintiff was a member of a city fire company, and the hose wagon on which he was, was struck by a street car as it drove out of the engine house. The hosehouse was about 16 feet from the curb, and the street was 40 feet wide; a single track street railroad being in the center. When the wagon galloped out of the hosehouse, a large bell was sounded, which

TRAVELER-USE OF STREETS-CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.

Whether plaintiff or the driver of the hose wagon was guilty of contributory negligence was a question for the jury.

[Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 117.*]

8. TRIAL (8 295*)-INSTRUCTIONS.

Instructions must be read as a whole. Dig. 88 703-717; Dec. Dig. § 295.*] [Ed. Note.-For other cases, see Trial, Cent.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by Dale A. Michael against the Kansas City Western Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Scarritt, Scarritt & Jones, for appellant. Reed, Yates, Mastin & Harvey, for respondent.

JOHNSON, J. Plaintiff, a fireman employed in the fire department of the city of Leavenworth, Kan., received personal injuries in a collision between a combined hose and chemical wagon on which he was riding and an electric street car operated by defendant, and, claiming that his injuries were caused by the negligence of defendant, instituted this suit to recover the damages he suffered in consequence of his injuries. The answer includes a general denial, a plea of contributory negligence, and a further plea that laws of the state of Kansas preclude a recovery in all cases of personal injury where negligence of the plaintiff contributed to the injury, regardless of the nature of the negligence of the defendant. Doubtless the purpose of this last plea was to interpose a special defense to negligence pleaded in the petition under what is known in this state as the "last chance doctrine," but since the issue of such negligence was abandoned at the trial, and was not submitted to the jury, it will not be necessary to bestow further attention upon it. A trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $5,000, and the cause is here on the appeal of defendant.

The injury occurred in the afternoon of June 13, 1908, on Fifth street between Seneca and Shawnee streets, in Leavenworth. Fifth street runs north and south, and is intersected at right angles by the other two