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from the chicken house was through a door, it was broken and entered, then I charge way of ordinary size. On the evening be- you that your verdict must be not guilty fore the chickens were stolen the door of of breaking and entering said building." the chicken house, which was hung upon The objection to these instructions is hinges, was open about 15 or 18 inches, be that there is an assumption that the door ing held open by means of a fence post was open sufficiently wide so that any perplaced on one side thereof and a brick on son might pass in and out of the chicken the other side. The owner of the property, house. This was a question for the jury, Mary Linton, testified that the door had and, in view of the fact that the fence post been propped open in that way, “just so and brick were moved, and the door was that the chickens and myself could pass in found to be from one half to two thirds and out.” She stated that the door was open after the chickens were stolen, the not open wide enough to permit her to walk jury was justified in finding that the openin-she “had to take hold of the edge of ing was not large enough to admit plainthe door and then pull around the corner.” tiffs in error, and that it was necessary to It appears from the evidence that the morn- move the obstacles which had been placed ing after the chickens were stolen the door against the door to hold it in position bewas from one half to two thirds open, and fore they could gain an entrance to the the fence post and brick were moved out house. of place.

The court, in its general charge, properly That the chicken house was entered by instructed the jury that if it found from plaintiffs in error and chickens of the value the evidence that the door of the chicken of $15 were stolen by them is not contro- house was partly open, so that a person or verted. Counsel insist, however, that the persons could enter the same, and it was not crime of burglary was not established, that necessary to remove the brick or post that there was no evidence tending to show that had been placed against the door to hold there was a forcible breaking and entering it in that position when making an of the chicken house, and that the court trance, then that would not constitute a erred in refusing to give to the jury two forcible breaking in the sense the statute certain special instructions, requested by uses the term. them to be given before argument. These The court further instructed the jury instructions are as follows:

that if it found that the door was partly "If the jury find from the evidence that open, and it was necessary to remove the the building charged in the indictment to post or brick placed against it to hold it in have been forcibly, feloniously, and burg- the position in which it was, and that the lariously broken and entered was a chicken entrance could not have been made into the house, and if the mode of ingress to and building without the removal of the brick egress from was through a common sized | or post, and that if the brick or post was door hung upon hinges, and that the said so removed by plaintiffs in error, or either door was so adjusted that it was left open, of them, and an entrance made into the or partly open, so that the owner and the chicken house, then this would constitute a chickens could pass in and out, and you forcible breaking. We are of the opinion further find that said door was in that that the court charged correctly on this condition at the time when it is claimed proposition. that it was broken and entered, as charged Counsel rely upon the following statein the indictment, then I charge you that ment in the opinion in Timmons v. State, your verdict should be not guilty of break. 34 Ohio St. 426, 32 Am. Rep. 376: “The ing and entering said building."

law on the point is, that if the owner leaves "If the jury find from the evidence that his doors open, or partly open, or his winthe building in question was a chicken dows raised, or partly raised and unfasthouse, and that the only mode of ingress to ened, it will be such negligence or folly on and egress from said chicken house was his part as is calculated to induce or tempt through a common sized door hung upon a stranger to enter; and if he does so hinges, and a brick or piece of brick was through the open door or window, or by so placed between the sill of said building pushing open the partly opened door, or and said door as to leave said door open further raising the window that is a little for a space of from 15 to 18 inches, and up, it will not be burglary." that upon the outside of said door there This doctrine, as was stated by the judge was placed upon the ground a piece of fence delivering the opinion, had no application post to prevent the door from swinging in that case, and, we view it, was clearly wide open, and that through the space thus obiter. We are aware, however, that it is left the owner could pass into and from the holding in a number of cases that where said building, and that said door was in a door or window is partly open and an that condition at the time it is charged ' entrance is gained by pushing open the

V.

partly open door or further raising the ible breaking” under the statute; and, takwindow it is not a breaking, and will not en with the other facts established, made constitute burglary. This rule finds favor a case of burglary. The trial court, therewith the English authorities, with the fore, properly refused to direct a verdict courts of Massachusetts, and is approved by of not guilty, and committed no error in some text writers. But there is a tendency refusing to give the two special instructions on the part of a number of courts to depart requested. from the strict construction of the common As to the alleged error,—the refusal of law, which required an actual breaking. the court to adjourn the hearing of the They have adopted what we consider to be case and permit defendants below to rethe more reasonable and logical rule, hold- call the prosecuting witness for further exing that but the slightest force is necessary amination,-it is sufficient to say that the to constitute a breaking. If any force at request was properly refused for the reaall is necessary to effect an entrance into sons given by the trial court. a building through any place of ingress, There being no error in the record prejuusual or unusual, whether open, partl dicial to plaintiffs in error, the udgment open, or closed, such entrance is a break of the court of appeals is affirmed. ing sufficient in law to constitute burglary, if the other elements of the offense are pres- Shauck, Johnson, Donahue, Wanaent. People v. White, 153 Mich. 617, 17 maker, and Wilkin, JJ., concur. L.R.A.(N.S.) 1102, 117 N. W. 161, 15 Ann. Cas. 927; Claiborne v. State, 113 Tenn. 261, 68 L.R.A. 859, 106 Am. St. Rep. 833, 83 S. W. 352; and the cases cited in note to

OKLAHOMA SUPREME COURT. State v. Vierck, 139 Am. St. Rep. 1040.

CITY OF MUSKOGEE, Piff, in Err., In the common-law definition of burglary the word "forcibly” is not used in connec

WILLIAM L, MILLER. tion with the word "break,” nor does it appear in the statutes of some of the states

'(- Okla. 145 Pac. 782.) whose courts have adopted the rule to which we subscribe. It is used in the Ohio Municipal corporation duty as to statute, but, as was stated in Ducher v. streets, State, 18 Ohio, 308, the offense is not

1. It is the duty of a municipal corporachanged by the statute which adds the tion to keep its streets in a reasonably safe word "forcibly” as a qualifying term. And condition for ordinary travel by the public.

Highway obstruction in Timmons v. State, supra, the court say

fright of

horse effect. that the application of the rule does not

2. Where a person is riding upon a welldepend upon the degree of force used, but broken horse ordinarily sure of foot, not at upon the fact that force of some degree, an unusual speed, and such animal, withhowever slight, was used. In that case the out fault on the part of the rider, becomes court held: “The force necessary to push frightened and temporarily unmanageable, open a closed, but unfastened, transom, and, by reason of coming in contact with a that swings horizontally on hinges over an

defect in a street negligently created or outer door of a dwelling house, is sufficient permitted to remain therein by a city, falls to constitute a breaking in burglary under and injures such rider, the municipality is

liable therefor. our statute, which requires a forcible breaking."

(December 22, 1914.) We think, as was said by the court in Claiborne v. State, 113 Tenn. 261, 68 L.R.A. Headnotes by BLEAKMORE, J. 859, 106 Am. St. Rep. 833, 83 S. W. 352,

Note. · Liability of municipality for that to hold that the opening of a door or

injury to person or property of one window which is closed but not fastened is

driving over defective highway where sufficient evidence of breaking, but that the his horse is frightened without fault further opening of a door or window partly of cither party. open, in order to gain an entrance, is not

This note is supplementary to notes to sufficient evidence, is a useless refinement. Denver v. Utzler, 8 L.R.A.(N.S.) 77, and

In the case under consideration, if the Harrodsburg v. Abraham, 29 L.R.A.(N.S.) door of the chicken house was further 199. opened, in order to make the opening suffi- As to what may be deemed to be the ciently wide to admit the plaintiffs in error proximate cause of injuries following a run(and this was a question for the jury), un

away, see note to Collins v. West Jersey questionably some force was required, and, Exp. Co. 5.L.R.A. (N.S.) 373.

The earlier notes show that while there however slight it may have been, it was is a conflict, the great majority of the cases all that was required to constitute a “forc- support the rule that where two causes com

E
RROR to the District Court of Musko- | 460; Oklahoma City v. Meyers, 4 Okla.

gee County to review a judgment in 686, 46 Pac. 552; Hugo v. Nance, 39 Okla. plaintiff's favor in an action brought to 640, 135 Pac. 346; Lamb v. Cedar Rapids, recover damages for personal injuries al- 108 Iowa, 629, 79 N. W. 367; Maysville v. leged to have been caused by defendant's Guilfoyle, 110 Ky. 670, 62 S. W. 493; Focknegligence. Affirmed.

ler v. Kansas City, 94 Mo. App. 464, 68 S. The facts are stated in the opinion.

W. 363; Birch v. Charleston Light, Heat Messrs. S. V. O'Hare and J. C. Davis & P. Co. 113 Ill. App. 233; Wheeler v. for plaintiff in error.

Westport, 30 Wis. 392; Boender v. Harvey, Messrs. Thomas H. Owen and Joseph | 251 Ill. 228, 95 N. E. 1084; Buck v. BiddeC. Stone, for defendant in error:

ford, 82 Me. 433, 19 Atl. 912; Montgomery The city must keep the street “reason

v. Wright, 72 Ala. 420, 47 Am. Rep. 422; ably safe for ordinary travel throughout its entire width, and free from all danger- Stafford v. Oskaloosa, 64 Iowa, 251, 20 N. ous holes and obstructions."

W. 174; Walker v. Kansas City, 99 Mo. Fairfax v. Giraud, 35 Okla. 659, 131 Pac. 647, 12 S. W. 894; Kossman v. St. Louis, 159, 5 N. C. C. A. 428; Guthrie v. Swan, 153 Mo. 293, 54 S. W. 513; Goins v. Mo5 Okla. 779, 51 Pac. 562, 3 Am. Neg. Rep.' berly, 127 Mo. 116, 29 S. W. 985; Stillbine to produce the injury, both of which the sparsely settled condition of the adare in their nature proximate, the one jacent country, the road was a reasonably being a defect in the highway, for which proper one, and for the public a reasonably the city is liable, and the other the swerv- safe and suitable road for travel. ing or running away of a horse, for which Strikingly similar to the Stedman Case, neither party is responsible, then the cor- supra, is Thompson v. Bath, 142 App. Div. poration is liable, provided the injury would 331, 126 N. Y. Supp. 1074, where plaintiff not have been sustained but for the defect was injured when a blind-folded unruly cow in the highway.

which he was leading across a bridge bolted, The following cases also, as does MUSKO- stepped on the end of a loose board, and GEE V. MILLER, support this rule:

fell over the side into the creek, plaintiff In Lannon v. Chicago, 159 Ill. App. 595, falling into the hole made by the tilting there was a dispute as to whether the wagon of the board. There were no barriers on in which plaintiff was riding was overturned the side of the bridge, and a loose plank by running into a hole in a city street; projected beyond the outside stringer, The but the court said that if it was, the city town was held liable, the defective condiwould be liable even if the horse were run- tion of the bridge, particularly with respect ning away at the time.

to the loose plank, and not the cow, being So in Stedman v. Osceola, 71 Misc. 186, held the proximate cause of the plaintiff's 128 N. Y. Supp. 341, where road repairers injury. McLennan, P. J., dissented from the had left an accumulation of sods in the above ruling on the ground that part of middle of the traveled roadway, and piles the bridge (10 or 12 feet in the center) reof stone along where the wheel tracks would served for travel was in a perfectly safe naturally come, the city was held liable condition, and that the defendant was not where plaintiff caught her foot in one of guilty of negligence because it failed to the piles and was dragged over the stones, make such bridge safe for the passage of when the horse which she was leading unruly or blind-folded cows, stating that started up in fright at a passing vehicle, where a town provides a driveway across the stone piles being an efficient proximate such bridge of sufficient width to accommocause of the accident, concurring with the date the public in its ordinary use, it disfrightened horse, and without which the charges its full duty, and it is not required accident would not have occurred. In ar- to construct and maintain a bridge with a riving at this conclusion the court stated tight floor extending across its entire width, that in case of two concurring causes each and so as to prevent from accident an unof which is proximate, the test is, Could ruly horse or cow in case it suddenly goes the accident have happened without their outside of the usually traveled way across co-operation ? Here there were two con- such bridge. curring proximate causes each of them an So, where one was driving an ordinarily efficient cause; namely, the frightened horse, gentle horse along a highway the traveled for which the town could not in any event portion of which was 22 feet wide, smooth, be said to be liable; and, second, the ob- and level with the top of a retaining wall structing stone piles left by the road re- unprotected by a barrier of any kind, it pairers, for which the town might be liable. was held in Sims v. Williamsburg Twp. 92 While the jury found the town negligent in Kan. 636, 141 Pac. 581, that the defect failing to maintain at the point in ques. (absence of barrier to check or restrain tion à road of reasonable width, and in a frightened horses from going over the wall) reasonably safe and proper condition, for in the highway was the proximate cause of public travel, the court observed that if injury suffered by the plaintiff when the the only criticism of the road was its width, horse which he was driving became sudit would be compelled to hold that, in view denly frightened at an approaching autoof the little travel upon the highway and mobile and backed over the wall. The court

water v. Swisher, 16 Okla. 585, 85 Pac. N. C. 184, 32 S. E. 548; Houfe v. Fulton, 1110.

29 Wis. 296, 9 Am. Rep. 568; Bassett v. Where a horse receives his initial fright St. Joseph, 53 Mo. 290, 14 Am. Rep. 446. on account of the defect or an obstruction in the street negligently left there by a Bleakmore, J., delivered the opinion of municipality, the city will be held liable for the court: the injuries resulting from contact of the This case presents error from the disrider or driver with obstructions or holes in trict court of Muskogee county, and is an the streets.

action brought by the defendant in error Meisner v. Dillon, 29 Mont. 116, 74 Pac. against the city of Muskogee for damages 130, 15 Am. Neg. Rep. 101; Emporia v. for personal injuries sustained by reason White, 74 Kan. 864, 86 Pac. 295; Ehleiter of being thrown from his horse on a public v. Milwaukee, 121 Wis. 85, 66 L.R.A. 915, street of the defendant city, resulting in a 105 Am. St. Rep. 1027, 98 N. W. 934, 2 judgment in his favor in the sum of $2,500, Ann. Cas. 178, 16 Am. Neg. Rep. 268; Mt. from which the city appeals. The parties Vernon v. Hoehn, 22 Ind. App. 282, 53 N. will be referred to here as they appeared E. 654; Vogelgesang v. St. Louis, 139 Mo. in the court below: 127, 40 S. W. 653; Dillon v. Raleigh, 124 Plaintiff alleged: “That Market street is stated that it was a question of fact for, while on this part of the bridge, resulting the jury, and not a question of law for in just such accidents. the court, whether or not a highway with So, where a horse took fright at a stalled a stone retaining wall along the side next automobile in the highway, and jumped to a steep creek bank was defective for over the side of a culvert, sustaining inwant of a barrier of some kind to check or juries, the absence of a guard rail upon the restrain frightened horses from going over side of the culvert was in Maynard v. Westthe wall. The court also observed that the field, 87 Vt. 532, 90 Atl. 504, held to be conditions being such that injury to users the proximate cause of the accident, renof the highway was reasonably and nat-dering the town liable. Whether a railing urally to be anticipated, actual knowledge at this culvert was required was a question of the conditions, obtained by the town for the jury, the determination of the quesship trustee by personal observation while tion depending upon a variety of circumrepairing the road, constituted notice of stances,—its length, the width of the defect.

road, the character and topography of the Criticisms of the statement of facts con- surroundings, the amount and kind of tained in the original opinion of Sims v. travel,—which were of such a character that Williamsburg Twp. supra, were examined reasonable men might differ in their views and shown to be without merit in 92 Kan. thereof. In this case both the horse plain832, 141 Pac. 1132,

tiff was driving and the one that was inA case stated to govern the Sims Case, jured, which he was leading behind his supra, is Mosier v. Butler County, 82 Kan. carriage, were more or less afraid of auto708, 109 Pac. 162, where a defective railing mobiles; the road at the place of the accialong the approach to a bridge was held dent was level and 29 feet wide, although to be the proximate cause of injuries to the graveled portion was only 18 feet in plaintiff, sustained when his horse took width; there was plenty of room to pass fright at a pile of stone at the side of the the automobile, and two men with it offered highway and backed some distance against their assistance, which plaintiff declined; one of the guard rails which gave way plaintiff was thoroughly acquainted with with the result that plaintiff's vehicle, with the road and knew that there was no railits occupant, was thrown to the roadway ing there. It was necessary for plaintiff a distance of about 20 feet. It was con- to show that he was at the time in the exertended in this case that the defective con- cise of due care; and this question was dition of the bridge was not the proximate properly submitted to the jury. The fact cause of the injury, for the reason that that he knew all about the situation prethe horse was frightened at the pile of stone sented, and must have appreciated its danin the highway. In support of this the gers, did not as matter of law require him defendant relied upon the well-known prin- to stop there until the dangers were re. ciple that if two distinct causes are suc- moved. Without forfeiting his rights as a cessive and unrelated in their operation, traveler he could drive on as he did, proone of them must be the proximate and the vided the danger was not of such a characother the remote cause. But the court oh- ter that no prudent man would encounter served that the principle had no application, it; and provided, also, in doing so, he because it was obvious that the two causes exercised the care and prudence of a pruwere related in their operation. Notwith- dent man. The court states that the statstanding the frightening of the horse, the ute giving the state control in the construcinjury would not have resulted if the guard | tion of state roads does not relieve a rail had not been defective. One reason town, through which it passes, of its statuwhy guard rails were necessary was the tory liability for injuries thereon. liability that horses might be frightened

one of the public streets of the said city guard or railing to give notice of the said of Muskogee, and that it is, and has been excavation and to protect persons who might at all the times herein mentioned, the duty be traveling upon said street from falling of said city to keep its streets in a safe upon or into said hole, and thereby being condition for travel. That in violation of injured, though there was grave and evident its duty as aforesaid, on about the 25th day danger of said injuries. That some of said of April, 1910, and for a long time prior rocks were about 18 inches long and 12 thereto, the said city knowingly permitted inches wide, and the same had smooth a large hole, or excavation, of the width surfaces and were so placed and allowed to of about 10 feet, of the length of about 30 remain in said mudhole that horses could feet, and of the depth of about 2 feet, to be not safely pass over the same in said street made and to exist on said Market street in the usual course of travel. That the beginning about 30 feet north of Fourth plaintiff did not know, and could not have street, and extending thence north, which known by reasonable diligence, that said hole or excavation was, during all of said brick and rocks were in said mudhole, nor times, full of mud and bricks, and large did he know, nor could he have known by slick rocks, which bricks and rocks had been ordinary diligence, that the said Market negligently placed in said hole by the said street at that point was unsafe for travel, defendant. That on or about the 25th but all of these facts were fully known to day of April, 1910, and for a long time the defendant. That on or about the 25th prior thereto, the said city of Muskogee neg- day of April, 1910, the plaintiff was lawligently, and with the full knowledge of the fully riding a horse, upon which he was existence thereof, permitted said hole so seated, along and over said Market street, filled with mud and bricks and rocks to at and near said mudhole, and without beremain there in the open street without ing able to see the danger of the same, and placing around or in the same any safe without negligence, and in the use of due

So the absence of a railing was in Mc-, to remove a bridge spanning a river in a Innes v. Egremont Twp. 5 Ont. L. Rep. 713, municipality fails to place a proper barrier held to be the proximate cause of an acci- in the highway upon the river bank, is not dent rendering à township liable to plain- liable for injury to horses which plunge tiff for injuries sustained when he was over the enbankment when running away, driving across a bridge at night during a after having escaped from control, since his thunder storm, and a flash of lightning negligence is not the proximate cause of caused his horse to shy off the bridge, car- the injury. rying him and the carriage with it into Both the Sims Case and the Mosier Case, the water beneath, the thunderstorm being supra, distinguished Eberhardt v. Glasgow one of those ordinary dangers which ought | Mut. Teleph, Asso. 91 Kan. 763, 139 Pac. to have been provided against by supplying 416. That was a decision-not strictly withthe bridge with railings.

in the scope of this note-in which a mu. But the playful actions of a colt in tual telephone company placed in the highcrowding its mate off from the traveled way, way, practically upon the north line, a teleand not the lack of barriers, was in Irwin phone pole, to which was attached a guy v. Byron Twp. Mich. 149 N. W. 980, wire, which extended diagonally into the held to be the proximate cause of injury highway, and 4 feet and 4 inches from to plaintiff by being thrown out of his such pole was attached to a brace driven wagon at a point in the highway 210 feet into the ground, the highway was 44 feet from the bottom of a long steep hill, and wide and the traveled portion 30 feet wide, where the roadbed was 14 feet wide for a the space north of the traveled portion in distance of 30 feet; the court stating as a which the wire was anchored was some 6 matter of law that where the wrought por- | inches higher and was not mowed, but was tion of the highway is 14 feet wide, and covered with grass and weed; the plaintiff where one can drive with reasonable safety was riding in a wagon with her husband, for 30 feet at right angles therefrom be- who was driving a span of mules, which had fore reaching a place of danger, the high- tried to run away at previous times: meetway is reasonably safe and fit for public ing an automobile some 20 rods east of the travel without the protection of barriers. pole and wire, the mules took fright and, In this case the colt was not frightened at veering to the right of the traveled way, anything.

ran the wagon against the pole or wire,Generally, as to what injuries may be probably the latter,-throwing the plaintiff deemed to be proximately caused by the ab- out and injuring her. It was held that the sence of a guard rail in a highway, see telephone company was not negligent in note to Lyons v. Watt, 18 L.R.A. (N.S.) locating the pole where it was, and, whether 1135.

negligent or not in respect to the wire, it And in connection with the note just re- was not liable, for the reason that the wire ferred to, see Thurbron v. Dravo Contract was not the proximate cause of the injury, ing Co. 238 Pa. 443, 44 L.R.A. (N.S.) 699, or one which might reasonably have been 86 Atl. 292, Ann. Cas. 1914C, 252, where expected to cause such injury. J. D. C. it is held that one who having contracted

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