Green v. Kansas & Texas Coal Co.

Ellison, J. — This is an action for damages for the-loss of the plaintiff’s horse by falling into a hole in a pasture of which plaintiff was in possession as “co-cropper or tenant” of his father, the owner. The facts-further appear to be that defendant purchased the coal underlying this land, and right to mine it, from plaintiff’s father; “that defendant mined the coal [609] from under the surface of said land, by reason of ■which a part of said surface fell in, leaving the hole into which plaintiff’s mare fell;” that neither defendant nor plaintiff fenced or guarded this hole, although each had known of it for as much as a month before the accident. The court found for plaintiff. The sole question presented to us by the instructions, which were offered by defendant below, the refusal of which is urged here as error, is whether the court should have found as a matter of law that it was contributory negligence in plaintiff to turn his animal into the pasture, knowing the hole in the ground was unfenced. The instructions declare that notwithstanding defendant’s negligence (which the case concedes), yet, since plaintiff knew the hole was unguarded, he could not recover. We cannot say that it was error in the court to refuse these declarations. We are not willing to assert as a matter of law that it is contributory negligence for an owner to turn his horse into “a pasture” which has a hole made by the falling in of a portion of the surface. We are not advised as to the size of the pasture or the hole. We are not advised as to whether there was anything about the opening in the ground to attract a horse, such as pasturage or food of any kind. In short we have no information except that it was a pasture, and that “a part of. its surface” had fallen in, “leaving the hole into which plaintiff’s mare fell.” There may have been many circumstances or facts, connected with the act of turning in, which would tend strongly to relieve the act altogether of negligence, or which would make it a matter of, at least, questionable propriety. If the latter was the case it could not be said to be negligence as a matter of law. It would be for the trier of the facts to determine as a fact, and by whose determination we [610] would be bound. These matters should have been made to appear by defendant, since its negligence is conceded. Contributory negligence on the part of plaintiff is a matter of affirmative defense, and a defendant must make it appear. The defendant must make the showing by way of excusing himself. The case as presented in the record will not justify us in making a decision of the points presented by counsel. The judgment will be affirmed. All concur.