Tapia v. McKenzie, 489 P.2d 181

Tapia v. McKenzie

489 P.2d 181

N.M. Ct. App.

1971

Check Treatment

*1 mеrger, any such fact was stated, dowe fendant, and, reasons the failed the issue in the defendant to raise that if a held it, we decide not now The substance of the trial court. gestae of the res occurs within homicide objection made to the court’s instructions provision of our felony-murder felony, the above, reasonably quoted and this cannot the homi applicable, and whether statute objection instruc- be construed as an actual after before or cide occurred vehicle, unlawfully taking tions on a motor felony is not determina оf commission ground particularly and so felony-mur applicability of tive of charged merged offense was murder Cox, 66 N.M. provision. Nelson der Nelson, clearly charge. objection In fact was (1960); State giving instructions de confined of (1959), cert. felony-murder provision our murder of nied, 4 L.Ed.2d 80 S.Ct. 361 U.S. statute, objection and the extent of explana As definitions was that there was lack substantial the matters gestae tions support fel- finding evidence'to the felo therein under encompassed events Nelson, ony, murder, premeditated other than ny-murder principle, see State v. attempted being committed or at the time Anderson, Criminal supra; 4 Wharton’s killing. Procedure, The substance evi- and cas (1957) Law'and regard dence has discussed been es therein cited. above. Defendant next contends that if judgment of the trial court should felony-murder provision our statute be affirmed. applicable, here the trial court erred be It is so ordered. felony fel cause the was not identified and ony was not defined. Defendant must fail COMPTON, MONTOYA, J., J., C. following in this for at least the contention concur. unlawfully felony tak (1) the reasons: vehicle, contrary provi motor defined, 64-9-4(a), sions of and, stated, already defendant was con thereof,

victed and no attack is here made conviction,

upon except the extent

of the indirect attack thereon referred point; (2) final defendant’s TAPIA, personal representative Isidore requests no made for further identification Gauna, Jr., Deceased, Willie Plain felony or definition cl the relied tiff-Appellant, State, therefore, and, cannot now question. James, heard on this State McKENZIE, Defendant-Appellee. Blevins No. 588. point final relied Defendant’s Appeals Mexico. Court trial court erred for reversal is that the Aug. 6, 1971. unlawfully charge instructing Sept. 7, Rehearing 1971. Denied instructing on taking vehicle after a motor felony-murder provision statute of our charge. position His under the murder (cid:127) * * (cid:127)“* taking unlawful felony,

the motor vehicle constitutes charge the murder merged

then it is into felony-murder doc- 1 under the of Count ” * * *

trine. *2 Eugene Klecan, E. Roach, T. Al- James

buquerque, plaintiff-appellant. Pharris, . Charles McLeod, A. Keleher & Albuquerque, for defendant-appellee. OPINION WQC)D, Judge. Chief case car-cow collision concerned summary judgment and ' ' loquitur. day of the accident cattle had .On high- worked on the side of south .been way and 25 to had brought 30 cows been to the highway through north side of the underpass.. put been These had cоws a pasture into adjacent north of and highway. pasture approximately was 800 acres and 35 to 40 cows were pasture. got of the cows onto the One. highway, but does the record not show dark, Gauna, when. After it was mo- torist, collided with Gauna died from it. injuries received in the collision. His representative personal sued defendant for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍wrongful appeal, death. no claim is made that was not the owner got highway. cow which onto pasture escaped .separated highway by from the guard. fence and a cattle briefs con- cede tо be an interstate guard fence and the cattle had been in- (cid:127) High- stalled a contractor the State way department Department and that own- prima cattle showing not make facie fence that he maintained ed and accident, it was de- was judgment. Following the guard. Foods, in- Shop supra; the fence Rite Sanchez v. portion com that the termined pare Safeway Stores, Inc., and that Rekart v. repair. good spected was good,” “real “top pole,” (Ct.App.1970). guard *3 disrepair.” The in repair and “in Loquitur. Ipsa Res guard;” “tracks crоssed cow’s emphasis Because placed on res got she “up to where trailed was she ipsa loquitur, both the trial court and “ * * * or- guard would A cattle hit.” appeal, summary in this and because the it didn’t hut anything, dinarily hold erroneous, briefly was dis- we one.” cuss this doctrine. foregoing, basis theOn plaintiff’s un contention that plaintiff summary judgment; granted der this go doctrine he appeals. upon showing this case a defendant’s .that highway; cow was the' that the judgment. Summary collided was fenced' and that car decedent’s part any liability on The basis of misreading This is a cow. negligence. in this case defendant Ridgway, supra. of Mitchell v. 249, 421 Ridgway, See escaped defen the horse from the Wolfe, ; v. Grubb (1966) corral; highwáy not fenced dant’s was 40A-8-10, § point. Supreme held the Our Court 6, Supp.1969); (Repl.Vol. N.M.S.A.1953 to avoid facts in Mitchell were sufficient 9, pt. (Repl.Vol. 64-18-62, N.M.S.A.1953 non-suit; erred the trial court 22-20-1, compare Supp.1969); “ * * * dismissing suit for failure N.M.S.A.1953. could be state relief a claim which Defendant, for sum ” the movant * * * granted. dismissal When the es the burden mary judgment, had which claim failure state issue a material tablishing the absence is whether granted, relief can be the issue summary was and that he of fact еntitled to recover plaintiff would be Sanchez law. matter of judgment as a provable under facts state of P.2d Foods, 82 N.M. Shop Rite Ford, Pattison v. that is made. the claim case, defendant In this (Ct.App.1971). 605, 485 (Ct.App.1971). absence establishing an had the burden of in this case. question is such involved No fact issue of of a material stated, holding a cause of action was Mitchell referred to Defendant did not meet this burden. and indicated the doctrine prima facts before the trial court make a applicable could be in car-cow collision showing faciе as to the means which applicable: For it cases. to be facts, got pasture.. cow out of the These “ * * * plaintiff must still ful- however, prima, make a facie show do not court, satisfying fill the burden of or negligence, (see of no N.M. U.J.I. jury, of a kind the accident was they part because 12.1) on the of defendant does not occur in the action, nothing or show as to inaction negligence, absence of someone’s foreseeability defendant agency instrumentality, that the in this escape. the means of connection with animal, case a was within domestic Compare Martin Board of Education exclusive control of the defendant. City Albuquerque, » * ** summary judgment plaintiff im fails to establish doctrine, did properly granted essential elements of the would prima facie case to make the wrongful available Gauna, not be death of Jr, Cashway Super Hisey liability. brought by under the doctrine of res Inc, markets, ipsa loquitur. The deceased driving an automobile nighttime in an easter- ly direction Highway Interstate .on Thus, New Mexico Su under the (formerly Highway 66), he collided when decisions, plaintiff would preme Court cow, with McKenziе’s between Clines Cor- jury in this case go be entitled Rosa, ners and Santa New Mexico. es showing that defendant’s upon a Gauna is dead and silent. evi- cat Department Highway caped through dence is deposition of' McKenzie. highway, caus upon the and was guard tle get jury, To collision. ing the In order to sustain jitdgment tending to must be evidence *4 doctrine, under McKenzie had the loquitur. Mitchell ipsa of res elements burden showing genuine there was no supra. because, issue of material fact as a matter law, (1) prox Gauna’s death was not in a sum different not be It would imatеly by caused the cow while it was If defendant mary judgment situation. under the manage exclusive control and entitling him showing prima a facie makes McKenzie; ment of (2) pres that the to defeat plaintiff, summary judgment, to ence of the cow on the was not there then show judgment, must summary of a kind in the Safeway 'which occurs Rekart v. issue. is a factual " negligence absence of on the- do this could Stores, Inc, supra. Plaintiff McKenzie; ordinary or McKenzie (3) used tending to es are facts by showing there management in his care 'control' and loquitur. ipsa res elements of tablish See, 12.14; D. cow. Renfro v. is a factual showing that there no If U.J.I. J. Co., Coggins 71 378 P.2d 130 doc N.M. to the elements as sue exists McKenzie, (1963). burden rested The be available trine, would the doctrine Thus, Markey, Ballard v. N.M. 346 P.2d 66 summary judgment. defeat Tapia. (1959), 1045 "and "not on Coca here relies plaintiff the facts on Arceo, 186, 193, P.2d 970 71 N.M. 376 summary a not defeat would showing supporting prima facie once a defendant, summary judgment is made McKenzie failed in burden. his establish tend to facts do these genuine means there is a issue of material loquitur. of res the elements ipsa loquitur. fact as to each element of res reversed. summary there, genuine are Since material issues proceed- further is remanded The cause fact, .they must be submitted opinion. ings consistent jury. Zengerle Insur v. Commonwealth It is so ordered. York, ance Co. of New Primm, ; (1955) Johnson HENDLEY, J, concurs. N.M. Great SUTIN, concurring. specially J, Western Ribble Construction Co. v. N. C. C SUTIN, concurring). Judge (specially o., N.M. meaning of sum- disagree as to the We Tapia present case ap- mary explain judgment, the failure to Buffington merits. statutes, plicable applicability of and the Casualty Company, Continental ipsa loquitur. There- res thе doctrine of ; Mar (1961) Cortez v. fore, specially I concur. tinez, 506, 445 P.2d 383 (1968). Summary Judgment words, all the other evi (a) Meaning the close trial, the time of dence in this' case cow, McKenzie, a owner of is not entitled to a directed in an action ver- summary judgment awarded occurred, disputed are issues of reversals diet because' there trial denied was delayed. policy trial is the of courts material fact. right grant of review to of trial when- only majority opinion holds justice ever demands it. Trial courts must absence to establish the McKenzie failed legal find a uр- rather than issue factual doctrine of under the But grant on which judgment. ipsa loquitur, Tapia not be en- would example, For Supply Co. v. Electric go presents he titled to unless Fidelity Guaranty United States & tending to the elements evidence (1969), disagree ipsa loquitur. The reason of res “Here, court said: is that elements of law to an accord whether there was duty absent, majority has a are now satisfaction.” Southern Gas Union summary judgment. Mc- sustain Co. v. Briner Rust Proofing establish the absence failed to Kenzie 32, 331 said: the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court negligence, add a claim can now Whether, indeed, negligence based ? the circum- McKenzie’s given duty stances of a exists is majority opinion to set forth fails pure question lawof for determination so, might the material To do aid facts. court. not direct a court. It should remand, has been stated some verdict McKenzie. On *5 that, ques ordinarily, negligence cases a necessarily trial court must look is jury, opinion, judgment not to the of man tion for the but reasonable and when date, for All mat differ as to and in minds cannot the facts law case. therefrom, ques to ters determined the decision become ferences be drawn binding upon are tion is Woman’s law of the and one of law. Stake v. case Service, litigants. courts and First National Bank Division of Christian 306, 303, Paso, Cavin, 468, (1963). is a of El Texas v. questionable “Reason doctrine to follow. (1923). 214 P. phrase. minds” an indefinite able is all of Mexico I have the New reviewed determine age, how can we accident summary judgment. on It would be cases trials, jury mind what a reasonable is? In overly to burdensome review a a reasonable are cross-section minds principles. can found Decisions be community Each service. cаlled each side. judge he has a reasonable trial believes Summary dangerous a in mind, minds and what reasonable knows justice strument in the administration of are, reason cannot know whether he right trial when denies a to party issue of ah able minds will differ. Where upon based The obvious factual issues. involved, trial ordinarily the negligence is purpose origin the rule from its New determine a should allow 1949, Mexico in the ad hasten differ. minds” can “reasonable whether justice expedite ministration and to liti Applicable (b) Statutes gation by avoiding Agnew needless trials. animals, live- covering and Libby, 56, The statutes need discussion. exper highways proven This has not true in actual stock ience. 40A-8-10, (Repl. Section N.M.S.A.1953 6, originally Supp. 1969), was history Rule Vbl. 56(c) Mex- 1936,N.M. adopted Code of summary judgment the Criminal ico indicates that does 303, 1963, was re- ch. 8-10. justice; not hasten Laws the administration §§ grant Laws ch. decide written N.M. § isbues courts which, believe, they amended Laws of ch. judgments § We Relating “An to Animals.” large the vast called Act trial docket. avoids A, relates quote B majority-of summary judgments'appealed, § § Highways,” toC where an Public Fenced “State inference of negligence is al- county jurisdiction of highways lowed. It is within also clear in the above stat- roads ute commissioners, “specific D to “unfenced negligence” applies to un- provides that fenced highways.” E or Section roads and not highways. fenced permitting unlawfully did commits “Whoever not have the duty proving specific guilty upon public highways livestock acts of A reads petty aof misdemeanor.” Section Inasmuch both provide statutes now as follows: for negligence in permitting livestock Unlawfully livestock permitting A. run at large or wander graze upon or any upon highways public consists fenced highway, they can both read negligent- owner or custodian livestock together. Roundy, See Steed v. 342 F.2d ly large permitting to run his livestock (10th 1965), interpreted Cir. which upon any public highway statutes before amendment. add- [Emphasis sides. fenced on both I am legislative unable discover the ed.] intent for adopting both statutes. How statute, The other “Animals ever, the two statutes set forth above Highway,” adopted under mo- which was readily disclose that purpose of each 64-18-62, N.M. tor vehicle laws traffic is § protect is to public. Ridg 2, Supp.1969), (Repl.Vol. pt. S.A.1953 wаy, parts are pertinent 1966. reason, For we must construe the following: facts and carry legis the statutes to out the any person neg- B. unlawful lative intent. The term “livestock” is of ligently permit to wander livestock plural origin, but it has been held that graze any highway or upon fenced one horse fenced falls or, during time of dark- hours within the statute. Mitchell v. ness, along to drive livestock *6 supra, bull, or Calley, one Carrasco v. 79 any highway normally which is used 432, N.M. (1968), 444 P.2d 617 or one by motor vehicles. calf, Wolfe, 601, Grubb v. 75 N.M. 408 ranging in C. Owners of livestock P.2d 756 (1965). pastures through which roads unfenced the majority opinion Inаsmuch as does highways or for pass shall not liable * * * not advise applica- the trial court the of damages of unless such owner statutes, bility of these error occur in specific negligence livestock is of guilty a trial on the merits. Can now add allowing range other than his animals negligence claim based McKenzie’s pasture. [Emphasis in said added.] arising out of these statutes ? 1953, originally As the word “negligently” B was omitted. § (c) Ipsa Loquitur Res by a This means inserted amendment. 1965 ipsa judi- Res legislature loquitur quagmire the did not intend strict is a of fault, liability liability analysis, cial simple without For a sеe or discussion. Second, Law, Torts, if he Restatement intended a owner to be liable the of Here, ordinary permit- 328D the care in and comment. authors failed exercise upon any ting comment graze superior cow to that defendant’s knowl- the wander or Hickel, it, edge, very per- or fenced v. access has See been Johnson 349, development the suasive in the of the (1923), N.M. P. 338 where factor 28 212 therefore, principle “normally, ver- “negligent” appear in the does not word 996, statute; Farrell, dict' cannot in a 248 Ark. be directed for defendant Prickеtt v. ipsa ipsa loqui- res. the solely (1970), 455 74 where res S.W.2d followed, Smith, v. basis of his own tur not defendant’s evidence and Scanlan 601, (1965), due care.” 66 Wash.2d 404 P.2d 776

122 destroy Mexico, presumption discussion arose the inference or first its Co., negligence by plaintiff’s 37 raised Supply proof or Quickel Auto & Hepp v. authorize disregard the it or 525, 528, 197 P.2d N.M, 25 finding as a rule authorize a the doctrine the absence recognized negligence principle that a matter of law or war- necessity based an ac- rant of mankind affirmative direction for de- experience the common hap- that, fendant. The rule is kind does when particular cident of in, question Its chief evidence is whether de- except through pen * * * knowledge of superior fendant has rebutted inference justification is jury, be sub- case must the defendant. mitted to the determine where apply sum- does Res preponderance lies, evidence malpractice medical mary judgment weight explanation, weight like the 445, Forbis, 73 N.M. cases. Cervantes v. inference, is for the determination and Buchanan (1964), P.2d 210 389 jury.” Negligence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍65A 423, C.J.S. P.2d 269 Downing, 394 220.20. expert medical need for majority opinion testimony. rеlies on Mitchell 249, v. Ridgway, 77 421 778 N.M. P.2d Mexico Every case in New loqui ipsa of res discloses the doctrine First, explain must ex- an error which accepted by the finder denied fact tur is involving ists at times in cases by the testimony has been heard after all loquitur. Mitchell, said: the court Chapin Rogers, 80 jury. court or 684, (1969); P.2d 846 William N.M. 459 opin We are aware of division Foods, Shop Piggly-Wiggly Rite son v. jurisdictions ion that exists in other Inc., (1969); 458 843 N.M. applicability Inc., Cashway Supermarkets, Hisey v. well loquitur. The views are two ; (1967) Gray v. N.M. Rule, expressed 169 Kan. in Wilson v. Longyear Turner, E. 296, 219 P.2d 690 Rice v. J. Read, (1967); Pack v. 62 S.E.2d where Va. D. Renfro apply the rule аnd refusal J. Coggins Smith, Scanlan v. Wash.2d lServicing v. (1963); D A & S Oil Wel opposite was reached. result 396, 374 Corp., McDonald Oil Smith, claims Although Scanlan *7 Shelley, (1962); 146 McFall v. 70 P.2d majority the nu represent view 390, (1962); Tuso v. N.M. 374 141 P.2d very merical difference is close and Markey, 77, (1956); 61 P.2d N.M. 294 1102 presence weak of statutes states some Bottling Tafoya v. Las Cruces Coca-Cola 252, ens 421 P. claim. N.M. [77 Co., 43, 59 P.2d N.M. 278 575 2d at 781.] Co., Ferguson-Steere Zanolini v. 58 Motor ipsa issue in loquitur Res not (1954). 265 N.M. P.2d 983 presence of “the Scanlan. That court held We Dean Prosser’s State defendant’s livestock on cases, ordinary that in ipsa loqui ment res permissible in- to raise a sufficient gets plain tur “avoids a non-suit and ference of which would take jury.” Read, to the tiff Pack v. ”*** plaintiff’s jury. case to the 76, 419 P.2d and Tuso Mar permissible difference between a inference key, (1956). ipsa of negligence res doctrine of Hepp v. ipsa adequately explained loquitur, Under the res doctrine of Quickel Supply by denying summary Co., Auto & that hold I (1933). McKenzie’s not evidence “does inference verdict permissible doctrine of evidence must be so conclu- opinion issue, express no sive that and I minds of not an reasonable men cоuld applicability in this case. differ as its conclusions to drawn (emphasis added).” therefrom.’ Frumer-Friedman, Injury, Vol. Personal 274.2, Animals, 1.02, p. language strongly supports Tapia’s Note jurisdic- position points out that five supplement, res is a factual Mexico, res tions, including very favor makes a New directed verdict a jurisdictions peak are difficult ipsa loquitur, and three climb.

contrary. whether do not know Defendant contends that the evidence event, any analysis accurate. presented makes the doctrine inapplicable supra, declares Ridgwаy, Mitchell v. because it got established how the cow Mexico. We exist in New doctrine to true, Even if this does by this are bound doctrine. destroy the is no inference misapplies explanation Second, opinion majority McKenzie of care used Summary supra. to restrain the freedom of this cow be- The trial fore it reached guard. an issue. the cattle was not plain- granted motion to dismiss proceed application Let us with the it failed to state complaint because tiff’s the doctrine of res to deter- complaint action. Since the cause of present. mine if an issue of fact is action, an- ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the court stated cause plaintiff must nounced Was the cow the Exclusive Man- ipsa loqui- res agement elements of the doctrine of and Control McKenzie? summary judgment amounts tur. A McKenzie contends he did not have ex- Pederson more than the motion to dismiss. management clusive control and of the cow Lothman, Mexico, as well because the State of New case, (1958). instant this burden In the himself, control; there is had by reversing summary judg- has been met specula- nothing surmise and more than ment in favor McKenzie. tion to exercise connect McKenzie’s Pa subsequent on Leet v. He re- McKenzie relies Union control with the harm. Coggins cific R. 25 Cal.2d lies D. on Renfro v. J. But the court said that instances This case dispelled

in which are all evidence was inferences was tried to court and quotes findings follow did not presented are made. rare. Atchison, Ry. meaning con- T. & F. Co. of “exclusive S. determine Simmons, 1946), Supreme that con- (10th 153 F.2d 206 Cir. trol.” Court held ñe'cessarily the em control exercised a New Mexico and relies on trol is not exer- phasis injury, be control added. the time of negligent act which cised at the time of- a “ ‘It an inference of fact. creates injury. subsequently results in duty of opposite party the casts on the con risking had no Mexico going forward with evidence State *8 time of at the jury negligence that from trol over the before or the will infer cow con highway. It had no the the case to the on the occurrence. It will take death the cow. escape of original trol over the unless the entire evidence employees in this keep duty to presumption such that cannot stand It had no the cow of against the freedom enough it. that the evi- area to restrain permit would, true, to avoid due care dence of the or to exercise to guard or to cross a cattle presumption ting sufficient to be- the cow rebut the " highway. large upon the cause run at pass it is for wander or to duty statutory of McKenzie credibility was a of the the truth This witnesses and Idaho Jarnagin, 91 v. testimony. Whitt justify To a directed alone. See mankind; (2) ence of the cause of-the cow railroad where a (1966); being highway which is accessible guard. of a control had Tapia; to to McKenzie and inaccessible factor causative The cow was duty (3) the rea- of McKenzie exercise Gauna, of an issue fact exists and of death prevent sonable care to livestock wan- control the exclusive it was whether dering highway; (4) public on fenced “Exclusive McKenzie. management of duty protect the motor- of McKenzie to actual, con physical not mean control” does ing public; (5) of an ex- the absence v. Pollard the accident. at the time of trol planation by that McKenzie accident Todd, 148 Mont. сare; (6) arose from of the animal want mean a narrow does not have primarily re- designed Acts which are right con ing. test is one duce collisions between motor vehicles Ragusano control. rather than actual trol public highways. animals fenced Foundation, 199 Hospital Civic Center Wolfe, 601, 408 P.2d (1962); Grubb v. Cal.Rptr. 118 Cal.App.2d way (1965), lighted Carson-Union-May-Stern on the duties Parlow v. pointing by of a owner out that “Time cow (Mo.1958). S.W.2d progress forged change.” party a third desires to file McKenzie clearly set reasons are forth. Mexico State complaint against the New pre-1966, facts and statutes are and, occurs, Department. Highway court said: trial, pro there is evidence the time of n foregoing- Highway Department authorities State duced duty control, “ex of livestock has a doctrine of owner shared in- property apply both. Mar care his a reasonable can control” clusive man, may N.J.Super. and that he be liable for in- Gay zotto v. Garment juries Neg resulting to motorists from colli- 65A 78 A.2d 394 C.J.S. Torts, negli- his with his animals due to ch. sions Prosser ligence 220.15d. gence permitting them to be on the states: highway. negligence arise The inference decision, parties against more who in Mitchell each two was followed Ridgway, supra, under an where each is the doctrine share where control-—as distinguished obligation ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍inspect, adopted, and the defect Calley, supra, which could have been discovered where district one Carrasco inspection. court found no evidence such a bull under an unfenced owner purposes For act. to establish that there' sufficient evidence ex- an exists whether had- issue Ridgway, supra, the found a when it clusive control of said:

way escape mean- the fenced area and highways Modern and vehicular traffic death was Ganna’s dered on permitted in New Mexico with livestock being proximately the cow caused presents to roam intolerable situation. the highway. believe the facts in stat Accident that this the Ordi- kind Was effect, utes in and the decisions mentioned narily occur in the Absence does not negli above show án inferénce Negligencef gence arises and the cow accident would segment important The second hot have occurred if McKenzie had exer accident ipsa loquitur is whether the cow cised due care. See also Whitt Jarna occur in the absence does not gin, supra. *9 negligence. we How.can of McKenzie’s Roundy, guides to fol- Defendant relies on Steed do certain tell? We have supra. experi- Mexico case involv- This is New rely the common (l).to low: os , accident in ing Valen- yet an automobile-horse has not disclosed what by care, County. tried The case was cia he exercised to restrain court, findings made that the defend- leaving the fenced area. negligent. This was affirmed. ant was not McKenzie closes argument his with interpreting earlier animal act with strong appeal res creates “negligent” permission to allow livestock an intolerable unjust burden on live- large, the court said: to run stock owners and makes them insurers of specifically requires The later statute public safety. This is not All true. proof alleged his preserved. defenses are running large owner of livestock legislature made negligence of the live- liability public highways before stock owner a pro- misdemeanor in order to would attach. tect the public speak- motorist. This is the 1, 1965, be March case was decided ing, nighttime, divided, fenced, At vast, supra, Ridgway, fore decided highways, interstate livestock owners must Ridgway, December Mitchell 1966. recognize danger to motorists’ created ipsa loquitur res by presence of a cow on the mentioning the same without fed statute They duty protect have a human life .to citations of eral case. find no further I more duty they than the protect have the Steed confirm Mitchell v. case. We the life of They one cow. must restrain Ridgway, supra. cow, preserve freedom the not to its life, Rule, preserve but to Defendant relies on human They also Wilson life. must play by 169 Kan. and Rice v. life saying, human “not . only Turner, gotten could the through cited cow not Va S.E.2d fence, supra. Nothing in Mitchell v. These did not. came through guard A views were not fence. would followed. anything, hold but it didn’t Hughes The defendant relies on v. W one.” It sounds like the cow flew over (Miss. & S Construction 196 So.2d the moon and took Gauna’s life. 1967). This was a trial in which res involved, but, way hot doctrine ais dicta, if it in- the court held that were sense, rule of common and common sense volved, fully the defendant sustained his permits proof an inference from proving burden of lack of injury physical agency inflicting Pongetti relied on its earlier decision of it, requiring proof point without of facts Spraggins, 215 Miss. 61 So.2d responsible human cause. 34 A.L.R.2d These cases Witort v. United States Rubber support summary do not A.2d Conn.Cir. support peremptory instruction after By special concurring opinion, I do testi- evidence is in and defendant’s Tapia victory. not hold that is entitled to a mony undisputed is clear that he ex- hold that is entitled to ercised reasonable care to restrain freedom of his requested calf. before a McKenzie.