*1 LIVE- EIXENBERGER, BELLE FOURCHE Aрpellant v. al., Respondents et STOCK EXCHANGE 235) (58 N. W.2d 21, 1953) (File April Opinion 9312. filed No. July 14, Rehearing denied *2 Wyman, Percy Fourche, Gale Helm, Belle Roswell B. H. Sturgis, Appellant. for Bottum, City, Rapid Overpeck, Fellows, H. F. Penfold & Belle Respondents. Fourche, brought by
SICKEL, J. This action was Edward M. Eixenberger, plaintiff, against Guiding- Schuft, Max Jesse Thompson, Henry Thompson, er, T. W. T. Schuft, William G. partners doing business as the Belle Fourche Livestock Ex- change, Guidinger, personally, and Jesse defendants, to re- damages injuries by plaintiff cover received in an accident Highway which occurred on U. S. as the result of a col- by plaintiff and two driven an automobile lision between jury partnership. found belonging The to the Thereafter, damages $30,000. and assessed his notwithstanding judgment motion for made a defendants granted, judgment enter- verdiсt, motion was appealed. Plaintiff ed for defendants. public main to above is a referred
The passing crossing west, (cid:127)thoroughfare from east state northwesterly extending through di- in a Belle Fourche City, Wyoming through It Montana. Miles and to rection specifications the Federal under was constructed Roads, bituminous surface. of Public with a Bureau *3 Exchange рroperty miles about two is located Livestock yards the Belle south of northwest of highway. Fourche and about premises kept about their three horses Defendants the When not in use permitted horses in their business. use yard, pen to be at in a or or were to confined vicinity pavilion graze of and in the unfenced area in the the highway. 21, 1949, the of the On December between hours plaintiff a.m., in Fourche of and his home Belle five six left way highway, to on his and drove northwestward on this Company. place about work for the Larson At a Construction past pavilion the one the two of and one-half miles sales proceeding north, the came the horses plaintiff’s damaging car, automobile, and the collided with injuring plaintiff severely killing the horses. jury sup-
Appellant that contends the verdict is Meylink ported by substantial, evidence, v. Minne- credible Co-op. Co., Oil 67 S.D. 291 N.W. and that haha setting erred in en- therefore the court aside the verdict and tering judgment notwithstanding the verdict. defendants appellant’s It to contention that the evidence is sufficient justify jury finding permitted in their that defendants heavily vicinity to run in a horses unattended prevent trunk to traveled without fence barrier straying upon highway; them from this constituted injury. negligence proximate plaintiff’s and was the cause of Negligence merely to a convenient term used designate per- of failure to to standards of instances conform inquiry right, plaintiff
sonal conduct. The is whether had a protectеd against the hazard here involved some rule of law which defendants’ conduct violated. The first consider- ' plaintiff’s right upon right ation is He had the night speed per to travel the a 35 miles headlights hour, on, on his own side of road with the as doing place time, he was at the and at the where the accident right occurred. Defendants contend that lost his to protection against this hazard failure' look when looking he could have seen the horses time avoid undisputed. collision. On this issue the facts are Calvin plaintiff, riding plain- Cutschall, a witness for work passenger car a tiff’s at the time of accident. He testi- suddenly up fied that came out the ditch pit right charged borrow on the side hand road into the car. One hit front horse end of the car and was breaking crash, thrown back over the an hood with awful lamps windshield. The witness further testified that the caught glance' just lit; the car were at the horses an instant before collided with the car. driving along
Plaintiff testified that he was at 35 miles -per up right hour all of when a sudden horses came out just pit, lunged right of the borrow out front of the car and stopрing, it; struck put that he had no time to think about but *4 just his foot on the as brakes the and car collided. horses through The feet of one of the horses came the windshield. only eyewitnesses These the to the In of accident. view testimony assumption this there no the basis the that appeared range plaintiff’s lights horses in full of or at such distance that could or have the should seen horses affirmatively contrary to avoid the accident. the it On .time appears the from evidence that the horses did not come with- range plaintiff’s upon of the vision until came the portion right
traveled from the north or side an instant before the collision and after it was too to late safety inappli- the avoid cable under the collision. of The so-called rule was undisputed facts. Neither do these undis- puted contributory negligence part facts show on the of plaintiff. by plain any which law rule of there is
Whether protected, it, right was as seewe tiff’s conduct defendants’ was violated so, such rule whether if general stated rule is The in this case. decisive issue is the p. 60, 738, “At common Jur., Animals, Am. follows: § 2in obliga legal no under animal is an owner of a domestic law large being unat on restrain it from tion injury damages result for an tended, he not liable knowledge large being ing has unless from its propensities reason unless he should the animal or vicious being injury ably anticipated from result its would highway”. large on the so at making the liable in this state is no statute
There allowing injuries personal domestic which result highways. Neither is it claim- to run animals any propensities other than those these had ed that horses un- are usual in when at natural or danger gist in- here The of the action is that attended. reasonably anticipated and that volved should have been duty plaintiff against protect it; of the defendants to was negligence. perfоrm that the failure was Whitlock, 224, 124 W.Va. 19 S.E. In case of Smith 619, issues A.L.R. and the 2d circumstances presented to were similar to those and decided court appeal. Virginia presented Da- In as in this West South statutory liability. opin- there was The court in kota no its ion, stated: nonstatutory rule
“But is there common law or making defendant liable under indicated in the de- the facts English requiring herein? The law claration common his animals to them owner own Many domestic confine fences premises recognized Virginias. never been has Ingham, rule.
other states have followed the same Law p. seq. English ignored Animals, rule be- 258 et country in that cause conditions out which it arose did *5 vast, wild, not exist here. In the forested domain which utterly here, a first settlers found unnecessary such law have been would wholly impracticable. The conditions which just policy adopted made and reasonable the at first in this permanent. begin- new land in were not What was safe ning, dangerous; later due tended become what was once might, changed subsequently care, conditions, under take on gross negligence. of character The unwritten law did not change, being applied but the basic situation to which was continually altering, though varying degrees, throughout country highways open the state. Some in-this state have become than busier of cities in the the streets Virginias original adopted, when the rule was while other Today, primitive. roads traffic thereon remains almost permitting may the owner’s a horse to wander on a may negligence, depending not be actionable on the char- of acter and its traffic. To let such an animal range great boulevard, on a automobile there to become in- volved in the confusion of incessant traffic in both directions great speed, intelligence and availing, may human is often un- grossest negligence;
be the while a horse browsing along unimproved, remote, unenclosed, little- may present road, trail, used rural or mountain no substan- danger tial risk of actual to travelers. This state has hun- types road, dreds miles of each of these with all kinds equally ‘highways’ All between. these roads are under the subject law; all are to the same rules. Yet what would be dangerous may perfectly road, on one another; be safe on legal negligence might be case, what would in one no evi- dence want of another. These diverse conditions may legislature account for the fact that the has enacted no every uniform statute control in is, case. Certain it shall, these considerations forbid courts in the ab- legislature, any sence of action undertake to establish applying highways universal rule to all in the state. Each case must stand road, on its own facts. The character day, per- thereon, the kind of traffic the time of and all other surrounding tinent conditions, facts and the must be consid- ered. might
“This status of the law is not as anomalous as creating any seem. first While therе no statute further liability injuries running caused animals highways legal state, there is no vacuum in this Although may not, field. statute, virtue of *6 running by person damages ato for done held liable highway, have should on such owner horse a his by liability injury immunity greater his beasts from for no injury public on his own committed road than a like a immunity greater from premises, have than he would no negligently by property injury An usеd. his other inanimate, property, on his or so all his animate must use carelessly purposely highway, premises or not or on a so might Very injure plainly, be held an owner negligence to liable, another. any statute, aside from by turning premises, example, as, it
his horse his own permitting unattended, loose, filled or run a field to unreasonably expose per- plаy. children at He cannot with unnecessary danger, rightfully he has sons elsewhere to liability greater right arises, to do so His no on a by highway, injury nor on a reason not because the occurs any statute, that it inflicted his nor the fact was very persons, right horse, but from the wherever law- fully purposeful injury careless, are, free from or to be necessary law, to be another—from the fundamental conception justice, written, inherent in that the but intentionally, negligently, property owner of shall not permit injure it, used, use it to be as to another.” protect
Defendants owed a to him to against danger hazard here involved if the should reasonably anticipated. Ostermeier, v. Traill 140 Neb. been 432, 375; Gross, 485, 300 Drew 112 N.W. v. Ohio St. 147 N.E. Galeppi 757; Bartlett, Cir., 208; Bros. Inc. v. 9 120 F.2d Lins App. Co., 150; v. Lumber 221 Mo. 299 Boeckeler S.W. Turner, Rice v. 191 Va. 24. S.E.2d
Typical among the cases cited above is Drew Supreme Gross decided Court of Ohio. That action brought damages recover sustained in a be public highway. collision upon automobile, and an tween horse suddenly leaped The horse was loose causing in front of the automobile it to be ditched. It was by plaintiff negligent claimed ing the defendant was in turn adjacent into the horse out a field with pre- no sufficient fence between the field and the *7 wandering vent the horse from Plaintiff onto also claimed that the so car was close to the horse impossible time that it was avoid the A collision. verdict plaintiff appealed. was directеd for defendant and The issues strikingly analogous of law and fact involved in that case are disposing in the issues this case. In of the issues the Supreme Court said: responsible negli-
“The owner of a is domestic animal gence keeping whereby damage in its is occasioned. principle negligent, test, as to whether the owner is or is not reasonably anticipated is whether he could could not have injury. question the occurrence which resulted in the It is jury of fact for the whether an owner of who turns adjacent them loose unattended into a field to a much-travel- highway nighttime, ed in the the fence field in of which is may easily stray defective such condition that the horses out anticipated onto the could have that one stray horses would out onto the and collide with an automobile thereon. chargeable knowledge
“The owner of livestock is with propensities livestock, of his is bound to know that placed horses or cattle when in an inclosure where the fence they may easily pass is so defective that out of the inclosure adjacent property probably and onto will do so. knowledge many including
“It is animals, common easily fright glare horses, lights take at the of the that are night carried season, automobiles when driven in the knowledge also common that when horses which are frightened they apt, by loose are thus are as reason of their fright, directly to run automobile, into the front of the or im- mediately it, across in front of as are to make other * * * kind of movement. injure any person property
“If domestic animals while wrongfully place injury in done, where the the ownr liable, er is do without notice that the animal was accustomed to * * wrong or mischief. always required duty “A statute not to establish the
ordinary duty may may statute1, care. The arise from or it ordinance, contract, arise from from or from the1relation of imposes Apart specific law parties. statute from property using not to duty every person own his change life modes of neighbor. injure conditions As his ordinary of one’s the use care alter, to observe altering essentials, will alter property, in its not while own always depends ordinary demands details. What its upon primary case, factor and a the circumstances injury among whether is the fact those circumstances anticipated reasonably been not have or could could defendant. When or left undone the acts done per general unsafe to it was state was established outside to run at animals mit domestic *8 doing damage municipalities, of the confines reasonably anticipated. generally With the not could particularly traffic, growth the situation traffic, automobile ordinary duty changed, remains to observe but requires the owner of that in modern times This same. stray ordinary to let his livestock care not exercise livestock highway, mod under our because onto a much-traveled out ern traffic conditions reasonably anticipate that, if the can they damage stray apt are onto such a livestock [112 758.] persons property.” We 147 N.E. Ohio St. expressed Gross, in Drew are in with the views thus accord herein to the same effect. and in the authorities cited undisputed horses involv It an fact that the two property defendants, were of the ed in this accident were the subject large control, and unattended to their and were at highway, the the time of the collision. The character of day pertinent thereon, other kind traffic the time already facts, described, known to which we were very might well have drawn defendants. Reasonable minds de from the evidence as to whether the differеnt conclusions reasonably anticipated the hazard of fendants should have vicinity highway running in the of this at the horses time and under the circumstances shown the evidence. deny they responsible Defendants, however, were highway being horses at the time of the acci- Their testified that when the horses were dent witnesses yard being they operation of the sales used connection with kept pen; in a sales that defendants had no were know- ledge large, that the horses were at and that defendants had placed safely previous pens them in one sales on the evening, testimony and left them there. The also shows that impossible gate open is was for -the horses to to the sales pen being kept. deny in which Defendants all knowledge responsibilty the fact that horses were pen out of the at the time of accident. plaintiff’s hand,
On the other witness Cutschall testified employed that he was aas mechanic the Larson Construc- Company tion and rode to and from work on this every day working accident; for two months before the vicinity he had these seen sevеral times where roaming space open occurred, the accident between Gray, the railroad tracks and the Richard who was employed Company, aas truck driver for Barnoid Sales testi- positively fied that he saw these horses on the south side of vicinity yard the road in the of the sales 4:30 about on the evening accident, before the and saw them at south of enough identify this road close them on several other oc- during preceding casions the two weeks the accident. L. P. Larson, contractor, testified that he had seen the horses at evening about 4 o’clock before the accident near the same location between the and the railroad tracks grazing them at sаw several other times south of the *9 agent Socony Truman, Thomas Vacuum Com- pany, testified that saw these same horses twice on Decem- again morning 20th, ber once at 8:30 in the and 6:30 evening; the that it was then dark and the horses came out pit highway upon of the borrow in front of his truck obliged stop striking and that he his truck to avoid question responsibility them. The of defendants’ for being large vicinity horses prior in the of this at to the time of the accident is one of fact conflicting contradictory. evidence supported verdict substantial credible evidence. Therefore we have concluded the circuit setting entering judg court erred in aside verdict and ment for defendant. setting judgment
The order aside the verdict and the
11 judgment directions to enter are rеversed with defendants plaintiff on the verdict. Judges All the concur. foregoing reaching (concurring).
LE’EDOM, In J. apply to the facts the court has declined conclusion leading field in this rule of cases this one of case 708, Koehnig, law, 209 N.W. Fox v. 190 Wis. on a livestock A.L.R. effect that essentially case, can- the same as in this under circumstances damages arising proximatе from an acci- cause of While concur the one involved. I dent such as here my opinion do within South it is that there exist view court’s parts particularly, more remote rural Dakota country, presenting open range areas land or cattle so-called permit- in which livestock somewhat different circumstances in this liable ted could not render to be at type of accident. al., Appellant
STOWSAND, et RABBIT LINES JACK Respondents (58 298) N. W.2d (File April 21, 1953) Opinion No. 9344. filed July 14, Rehearing denied