196 Iowa 678 | Iowa | 1923
I. The alleged negligence of the defendant is charged in the petition in the following terms:
The demurrer to the foregoing was predicated upon the three following grounds:
”1. It appears from the plaintiff’s petition that no negligence on defendant’s part of which plaintiff has a right to complain, was the proximate cause of plaintiff’s injury, if any she suffered.
“2. Even if the matters and things set forth in plaintiff’s petition were true, the fact that some of defendant’s hogs were on the public highway, if such were a fact, does not render him*681 liable for automobile accidents or make him an insurer of the safety of persons traveling along the public highway, so far as a collision between a pig and an automobile is concerned.
“3. The matters and things set out in plaintiff’s petition as negligence or as improper or unlawful acts on the part of defendant, are not such matters and things as to enable the plaintiff to base a cause of action thereon against the defendant, or to entitle her to recover against him, because the mere escape of hogs from an inclosure is not negligence, and a collision between a hog and an automobile on a public highway is not such a thing as defendant could or would be bound to anticipate if his hogs should escape from an inclosure onto the public highway. ’ ’
The argument of the appellee in support of the foregoing grounds of demurrer is predicated largely upon the twofold assumption:
(1) That the action is one for statutory damages, under Sections 2313 and 2314 of the Code.
(2) That such statute has no application to the rights of a traveler upon the highway, and that it imposes upon the owner of swine no duty with reference to such highway travel.
The'petition charges two negligences:
(1) That the defendant negligently permitted his hogs to run at large upon the highway.
(2) That he was affirmatively negligent in calling his hogs, under the circumstances existing at the time of such calling.
“But stock shall not be considered as running at large so long as it is upon unimproved lands and under the immediate care and efficient control of the owner, or upon the public roads for travel or driving thereon under like care and control.” .
The necessary effect of this statute is both to recognize and to impose upon the owner of hogs the legal duty to restrain them from running at large, either upon the lands of another or upon the public highway. To allege a breach of this duty is a sufficient allegation of negligence in support of an ordinary action for damages predicated thereon. The nature and measure of damages which may be recovered in such an action are not necessarily statutory nor dependent upon statutory provisions, unless the statutory provisions relied on have the effect to deny or abridge the common-law right of recovery.
We hold, therefore, at this point that the allegation that the defendant negligently permitted his hogs to run at large upon the highway is a sufficient allegation of negligence for the purpose of a demurrer. Whether it should have been made more specific is a question not involved in a consideration of the demurrer. For authorities supporting this discussion, see' 3 Corpus Juris, Section 324; Meier v. Shrunk, 79 Iowa 17; Leonard v. Doherty, 174 Mass. 565; Shipley v. Colclough, 81 Mich. 624 (45 N. W. 1106); Jewett v. Gage, 55 Me. 538; 37 Cyc. 266; Van Roy v. Watermolen, 125 Wis. 333 (104 N. W. 97).
II. It is urged by appellee that the alleged negligence of the defendant was not the proximate cause of the injury suffered, in that the accidental collision of the hog with the plaintiff’s automobile was an accident or event that the owner of the hog could not have anticipated as a probable consequence of his negligence. It is to be conceded that certain authorities relied upon by the defendant tend to support this contention. See Briscoe v. Alfrey, 61 Ark. 196 (30 L. R. A. 607) ; Brady v. Straub, 177 Ky. 468 (L. R. A., 1918 D 197); Klenberg v. Russell, 125 Ind. 531 (25 N. E. 596); Anderson v. Nesbitt, 43 Ind. App. 703 (88 N. E. 523).
We will not undertake to analyze the opinions in the foregoing cases. Some of them may be justified by the peculiar facts of the particular case. On the general proposition to which they are cited by the appellee, we are unable to give our assent. It is the fundamental law of the highway that it is subject to the use of the traveling public, and that it must be-kept free from such obstructions as are not incident to its use for travel. Whatever endangers travel thereon, and whatever is not incident to the lawful use or care of the highway, becomes, ordinarily, a nuisance and a public peril. In the days of the ox-drawn vehicle, it may be conceded that the presence of a hog upon’the highway would not present any imminent danger of a collision with the vehicle. In the later day of the swifter
In the latter case, we said:
“The statute to which this allegation has reference [meaning the allegation of the petition] does not involve the doctrine of common-law negligence upon which the liability in the instant case must be and is predicated.”
We hold at this point that it cannot be said, as a matter of law, that a collision between a vehicle and a hog unlawfully running at'large upon the highway is an event too remote to be deemed the proximate result of defendant’s negligence, if any.
IY. It is urged by appellee that the petition contains no allegation of freedom of plaintiff from contributory negligence. Such point was not one of the grounds of the demurrer. In view of our foregoing conclusion that the first stated negligence alleged in the petition is sufficient in form, we have no occasion to consider the sufficiency of the additional allegation of affirmative negligence stated therein. Even though such statement were insufficient of itself, this would not- render the petition vulnerable to the demurrer, even though it might be vulnerable to a motion for a more specific statement or to strike.
It is our conclusion that the demurrer should have been overruled, and that the learned trial judge erred in ruling otherwise. The judgment below is, accordingly, reversed, and the cause is remanded accordingly,~ — Beve)\seel and remanded.