Hitzel v. Clark
334 N.W.2d 37
S.D.
1983
Check Treatment

*1 HITZEL, Appellant, Joe Plaintiff CLARK, Defendant,

S. Cushman

Counterclaimant, Third-Party Appellee,

Plaintiff McInerney,

Joe HITZEL and Paul Third-

Party Appellants. Defendants

No. 13883.

Supreme Court of Dakota. on Briefs 1983.

Considered Feb.

Decided May 10, 1983.

Rehearing Denied June Driscoll, Mattson,

Jerry C. Rachetto of Christensen, Deadwood, Rachetto & *2 contrary undisputed testimony to the appel- and defendants plaintiff, third-party contends that dry. Appellant road was lants. the statement war- the trial court’s incorrect Johnson, Rapid Ann Jones of Banks & C. disagree. We rants reversal. counterclaimant, third- defendant, City, for plaintiff and do not include this party appellee. findings The of fact statement, memorandum and the incorrect WOLLMAN, Justice. into the find opinion incorporated was not of law. The ings of fact and conclusions appeal judg- an amended This is an from therefore, statement, re is not trial court’s the appellant denying recovery ment finding viewable a of fact SDCL We loss of a cow. affirm. of 15-6-52(a). Dykstra v. Nat’l Bank Angus was owner of an Appellant Dakota, (1983); 862 Dale 328 N.W.2d by appellee’s hit killed cow that was Educ., (S.D. 316 N.W.2d 108 v. Board of 7, evening September of vehicle on Talbert, 862 1982); v. 290 N.W.2d Talbert 1980, in the Pass Highway 85 O’Neill Strand, v. 82 S.D. (S.D.1980); Christiansen The area, Wyoming state line. near the 416, 147 (1966). recently As 415 we N.W.2d The cow’s soon after the accident. calf died held, “It of the trial court prerogative is the grazing on Forest Service cow had been the bench or a re-think a decision from to agreement between pursuant land Jones, Jones decision.” v. memorandum individual, the third- appellant and another (S.D.1983). 492 N.W.2d 334 case, who had in this party defendant from the Forest Service. grazing permit Appellant next contends that along permitted Highway Fencing is finding trial court erred in appellee signs range area open and because of this exercising was all driving due care his warn driv- along are located and was negligence. free from What con large. at Not- ers there livestock stitutes due under all circumstanc these some nine or ten withstanding signs, es is usually question of fact for the trier four owned (including head cattle cows of of fact. v. Loonan Lumber Co. Wannamak struck, have fatal- by appellant) been some er, (1964). 131 78 A N.W.2d years in recent ly, by automobiles finding trial court’s of fact will not be question. collision in area of the reversed it clearly unless is erroneous. of the that at time Appellee testified 15-6-52(a); SDCL In re Estate of Hobels out, it was dark dry, collision the road was berger, 85 S.D. Ap- he turned on. headlights had evidence, reviewing After we cannot coming he testified that as was pellee say the court’s finding clearly trial is erro cows he three or four around a curve saw neous. The issue of due care in this case immediately applied highway. He appears to revolve the speed around colliding his brakes but unable traveling the time of cow, the left slightly which was with the Both appellant accident. the third- of his lane of travel. party defendant testified that appellee’s speed m.p.h. Pass area is of 45 The limit in the O’Neill reasonable on that speed particular highway. he was Appellee testified that m.p.h. 55 have that he could m.p.h. 45 driving driving if he had been the accident avoided Louisiana case Appellant relies third-par- and the m.p.h. appellant 10 Both negligence. his claim of support law m.p.h. that 45 testified

ty defendant Co., 337 Union Ins. Flores Commercial of rate be reasonable Wortham v. Ow (La.App.1976); 264 So.2d night. Highway Lou ens, (La.App.1967). The 200 So.2d Appeals has stated: isiana Court of in its memo trial court stated roadway, to cattle in regard weather conditions With that the opinion randum liability This of care and statement standard slippery. were wet and night motorist range country A motorist is not an insurer that he is negligent and liable injury to animals on highway. resulting damage if runs into cattle Pierce, 236, 103 Rivers v. 106 Colo. P.2d 690 standing or walking normally in road- (1940); Hall, (Colo. Snowden 472 P.2d 711 *3 further, way; his failure to the see cattle App.1970). presumption No negligence of is sooner not by obscuring excused their exists a driver whose vehicle col coloration nor because the motorist’s livestock, lides with and the rule does not reasonably pru- were control change because the accident occurs in an except dent for unexpected the circum- open area. range Shaughnessy, Fries v. 159 finding stance of in livestock his 307, Mont. 496 (1972). P.2d 1159 The driver path. ... in an open range area held to the stan Wortham, 783, Flores, in supra, quoted prudent dard of a reasonable person supra, appear 267. The Louisiana courts Fries, supra. the circumstances. of require unusually high degree an care The a fact that collision with oc livestock in on involving injury open cases animals curs on range area does not make range areas. The author of the Wortham an instruction unavoidable im accident opinion, recognizing high degree the of care Wolfe, proper. 601, v. Grubb 75 408 N.M. courts, required by the notes that Louisiana (1965). P.2d 756 legal the interests of transit unobstructed highways the cause the courts in may light In the foregoing of hold require the future to a lesser of standard ings, we highways hold motorists on 783, care. 200 So.2d at n. 1. open range within are areas not held to a * 40-28-5 appellant SDCL absolved from higher standard of care trespassing vis-a-vis any liability damage livestock high than motorists on other appellee’s done to automobile in the colli ways within the Accordingly, state. governing sion. Thus the usual rules trial not ruling appel- court did err in responsibility of livestock owners are not lee duty appellant. had breached no Clark, applicable here. Pexa v. 85 S.D. judgment The amended is affirmed. Eixenberger (1970); 176 N.W.2d 497 Belle 75 Exchange, Fourche Livestock S.D. FOSHEIM, C.J., and MORGAN and 40-28-5, 58 N.W.2d 235 SDCL DUNN, JJ., concur. shield on the of live against liability, part owners, stock not should be construed as HENDERSON, JJ., specially. concurs liability imposing upon burden of absolute nighttime motorists who venture HENDERSON, (specially Justice concur- crossing by the lands covered highways ring). long statute. The the frontier day of I majority opinion concur in the specially come, past, suggested and the time as has thoughts my but own my must brand Wortham, Tate by Judge supra, in not in with the totally words as I am accord right traveling public of the to unobstruct majority opinion. language in over precedence ed transit must take impose upon care which I would standard of owner right protection of an to absolute highway a motorist on a in a nation- wandering livestock. We de therefore al Dakota high open-range of care forest area impose cline to standard of Rather, duty would due care. South general be a required by the Louisiana courts. (Civil) Jury of Dakota Instruction we look to decisions from several Pattern part: 70.01 provides western states. § * forests, Harney provides: Black Hills and national 40-28-5 SDCL of the which lands were not the time person damages No shall be liable for fence, legal trespass by defined inclosed horses, cattle, mules, by goats, caused sheep or and 43-23-4. him, 43-23-3 by trespass upon §§ owned within of the lands the exterior boundaries and, duty (driver/operator) dangerous in a situation every

It is the of enwebbed own, of fault of his as he came using public highway through a vehicle no curve, Surely, he killed a cow. ordinary exercise care at all times to around I do find placing danger himself or others in not be liable therefore. should or findings to exercise at all times the trial court’s fact conclu- ordinary to be erroneous. Mat- clearly to avoid a collision. sions of law Nelson, ter Estate of duty anticipate This includes the Therefore, af- (S.D.1983). I would likewise persons, of other presence firm. vehicles, objects. Limmer v. Weste gaard, (S.D.1977); Nugent N.W.2d 676 black cow should not have Lastly, Quam, 152 N.W.2d of the been on the black road in the dark also, (Civil) (1967). See 70.01 § S.D.P.J.I. particular first as this night in the instance *4 Livestock, thereunder. collected cases grazing cow was authorized to be on the not “objects.” be my opinion, would Such National Forest. It was turned Black Hills anticipate the particularly motorist should public with graze loose to on lands of livestock on the where presence highway knowledge roam freely that it would signs posted have been “Livestock en- being there no fence to highways, Large.” public highway. from close cattle it was a exiguous legal It stature as had Angus, cow the road was was black III Finding ab initio. of Fact trespasser night and the was black. asphalt, black VI, provides: I, Finding Findings of Fact and IX. provides:

Fact XI angus cow above-described The black property grazing was on Forest Service for to [appellee] It was difficult see highway near the for which Forest Ser- high- asphalt cow the black black property Party Third Defendant [appellee] as soon as could see vice way; grazing permit; had a cow, immediately put Mclnerney on his Paul [appellee] question was not hitting particular the cow but cow in brakes to grazing permit did autho- hitting unable to avoid cow and listed to Forest graze rized cows on the U.S. strike and kill the cow. Highway near Service land located provides: “[Appellee] of Fact VII Finding words, In this cow was not entitled to m.p.h. other driving approximately safety it exercising any supposed emolument of as was of the accident and was time graze public on lawfully entitled driving.” all due care in his It therefore difficult fathom lands. I provides: “[Appel- of Law Conclusion damages owner can assert how the cow by preponderance prove has failed lant] knew that apparently his lost cow when negli- [appellee] of the evidence that no be in that area in right the cow had any way when he was gent His action has a the first instance. cause of 7,1980, at Highway September car faulty springboard. It not unrea- approximately p.m.” 8:00 state I establish a rule in this hypothesize would not sonable must open-range country, motorist exercising care on the when that in due I re- Here, certainly to a But would yield killed. the motorist’s cow. the animal was to exercise due care to imprudent a motorist quire was not unreasonable nor cow, Cf., particularly with a Doyen avoid a collision existing conditions. warning the motor- Lamb, signs posted where it other- Large.” “Livestock at Were indicating it was ist of Obviously, signs wise, condoning rule we have a range running at would and livestock were into immediate to, of cattle warning to the motorists cruel conversion large served highways. There is com- hamburger on our effect, care. And the due proceed may it be I subscribe fort in the rule reveal the motorist was would facts yet with certitude to a set of facts applied motorist with due care. This proceeding provides it in a flexibility myriad factual

circumstances. It should applied not be

where a more specific duty of is im-

posed by far, statute. Thus although the Legislature 40-28-5,

State passed SDCL

known as the Open Range Black Hills Stat-

ute, specific no of care than duty higher

general duty of due care has been created

by Legislature. Dakota,

STATE of South Plaintiff Hallem, Jeffrey Gen., P. Asst. Atty. Appellee, Pierre, for plaintiff appellee; Mark V. *5 Meierhenry, Atty. Gen., Pierre, on brief. PEDDE, William B. Defendant Nicholson, Falls, Thomas J. Sioux for de- Appellant. and fendant appellant. No. 13899. WOLLMAN, Justice.

Supreme Court of South Dakota. appeal This judgment is an from a Considered on April Briefs 1983. attempted conviction for robbery in the May Decided We degree. first affirm. The giving incident rise to defendant’s purse conviction was attempted snatch- ing Valley Hospital outside of Sioux evening of March 1982. The victim person testified up ran from behind her, shoulder, hit dragged her on her a feet, her her few caused to fall down with her, purse under ran bone then off. A in the victim’s shoulder broken victim other injuries suffered as a result of this The incident. victim unable to see person face of the who her knocked down, elderly walking and an who was lady the victim the time of the incident to testify unable as to the incident. hospital An employee who inci- leaving from work at the time of the that she dent testified saw defendant Seidschlaw, de- Keith who was tried with up acquitted, fendant but run behind elderly lady. eyewit- victim and the ness further testified she saw defend- victim ant knock the down.