This is an action for damages occasioned to an automobile of the plaintiff on November 19, 1939, while, it is alleged, it was lawfully driven along public highway. No, 281, near Grand Island, Nebraska, by its driver, James Traill, plaintiff’s son, in “a careful, cautious and prudent manner, at a lawful rate of speed, and with headlights burning, and
In his answer, the defendant, first, admits that the plaintiff had an accident with said automobile on highway No. 281, on or about November 19, 1939, while the car was being- driven by her son, James Traill, with the full knowledge and- consent and acquiescence of plaintiff, and denies generally the allegations in plaintiff’s petition contained; second, denies specifically that said accident and the alleged damages sustained were' caused by the negligence of the
The instant action was first commenced in the county court for Hall county, Nebraska, and the petition and answer hereinbefore set forth in substance were first filed in that court. A trial duly had in the county court resulted in a judgment in favor of the plaintiff and against the defendant for the sum of $395 and costs of suit. Thereupon the defendant executed an undertaking for appeal, and prosecuted such appeal.from said judgment by lodging a proper transcript of the same, together with the proceedings had in connection therewith, in the district court for Hall county. On July 25, 1940, the parties to this proceeding caused to be filed in the district court for Hall county a stipulation in writing, executed by both parties, and duly entitled in this proceeding, “That the above entitled case shall be tried in the district court of Hall county, Nebraska, on the pleadings filed in and the transcript of the county court of Hall county, Nebraska, appealed from, and that the filing of new pleadings in this court is hereby waived.” The cause was tried in the district court, pursuant to the stipulation, and judgment was there entered in favor of the plaintiff. From the order of that court overruling his motion for a new trial, the defendant appeals.
From a careful examination of the fourth paragraph of defendant’s answer, which we have heretofore set forth herein, with the allegations of plaintiff’s petition, disregarding mere form, but giving full effect to the substance of the statements contained in each, it fairly appears that, though matters are pleaded in the answer in affirmative form, in substance and legal effect they amount to no more than a denial of plaintiff’s cause of action. The situation here presented invokes the application of the rule well established in this jurisdiction: “Pleading affirmative matters in an answer, which amount to no more than a denial of plaintiff’s cause of action, will not necessitate a reply.” Peaks v. Lord, 42 Neb. 15, 60 N. W. 349. See, also, Gruenther v. Bank of Monroe, 90 Neb. 280, 133 N. W. 402; In re Estate of Kamrath, 114 Neb. 230, 206 N. W. 770; Neslund v. Kinnan, 129 Neb. 339, 261 N. W. 832.
The situation suggests the application of another rule which would obviate defendant’s challenge based on the necessity of filing a reply. This case was first tried in the county court and appellant was the appealing party. The code provisions regulating appeals contemplated that in the district court procedure would be followed in all respects in the same manner as though the action had originated in such court. In the instant case this Code would have required the filing of a new petition, a new answer, and, if a reply be necessary because of the allegations in the answer, a new reply. Comp. St. 1929, secs. 21-1305, 21-1306; Moline, Milburn & Stoddard Co. v. Hamilton, 56 Neb. 132, 76 N. W. 455.
The stipulation necessarily eliminated compliance with the statutory provisions referred to, and by necessary implication rendered unnecessary the filing of a reply. The
The question of whether the driver of the damaged automobile was guilty of contributory negligence in the driving of the automobile at the time and place of the accident was, under all the evidence in the record, properly a question for the trial jury. It was submitted to them by the trial court, by instructions which we approve, and their determination under the facts and circumstances disclosed by the record is binding upon this court.
It is contended by appellant, however, that. “It is not unlawful for domestic animals to be at large on a highway, and the owner of domestic animals straying on the highway and coming into collision with an automobile is not liable for the resulting damage, since such an accident is one that could not reasonably have been anticipated by the owner, even if he was negligent in failing to maintain secure fences.” So far as this contention may depend on surrounding circumstances, it may be said that the defendant for a number of years has lived adjacent to highway No. 281 and for seven years or more has been engaged in raising hogs. Highway No. 281, on which the accident occurred, is a hard-surfaced, well-traveled highway extending in a northerly direction from Grand Island, Nebraska. Defendant’s farm home is on this highway, six miles north of Grand Island. His hog lot embraced some 25 acres and in it immediately prior to the accident he kept 84 hogs. It was fenced with 22-inch woven hog wire, with three barb wires on top; but at one place in the hog lot fence the defendant had removed the three strands of barb wire to
The situation presented a case in which the following observations of Evans, J., in Stewart v. Wild, 196 Ia. 678, 195 N. W. 266, are enlightening: “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 moving horse-drawn vehicle, the presence of a hog at large became an increased danger, though more readily avoidable than in the still later day of the motor vehicle. In these days of general travel by motor vehicle,
When, added to the natural danger of the roadway, there is the sudden appearance thereon of the panic-stricken hog, from the concealing darkness, momentarily outlined by the confusing glare of the approaching headlights of the oncoming automobile, what was prepared as a path of safety has indeed become a place of peril. This is a necessary result of the use of an instrumentality of transportation which an advancing and progressive civilization has adopted. All men possess this knowledge and are bound to accommodate themselves to the changes effected. As a matter of public policy they must be deemed with reference thereto to have anticipated the natural consequences of the negligence they permit themselves to commit, and necessarily assume full responsibility for their lack of due care.
In Heist v. Jacoby, 71 Neb. 395, 98 N. W. 1058, we held, in the absence of statute authorizing a recovery, that, where “One whose sole fault is the permitting of young hogs of 60 to 100 pounds weight to go at large upon his own premises, so that they wander across the highway to a neighbor’s cornfield, and in running back frighten a passer’s horses,” there could be no recovery for injuries to “the passer’s equipage and person produced by such fright.” This, for the reason that “An accident, such as happened, is not, ordinarily, to be anticipated from the mere fact of leaving young hogs at large.” This reason, so stated, under present conditions, is wholly inapplicable to the instant acci
In Drexo v. Gross, 112 Ohio St. 485, 147 N. E. 757, the following language was employed, which is applicable to the facts in the instant case:
“The owner of a domestic animal is responsible for negligence in its keeping whereby damage is occasioned. The principal test, as to whether the owner is or is not negligent, is whether he could or could not reasonably have anticipated the occurrence which resulted in the injury. It is a question of fact for the jury whether an owner of horses who turns them loose unattended into a field adjacent to a much-traveled highway in the nighttime, the fence of which field is in such defective condition that the horses may easily stray out onto the highway, could have anticipated that one of the horses would stray out onto the highway and collide with an automobile thereon.
“The owner of live stock is chargeable with knowledge of the propensities of his live stock and is bound to know that horses or cattle when placed in an inclosure where the fence is so defective that they may easily pass out of the inclosure and onto adjacent property will probably do so.
*441 “A statute is not always required to establish the duty of ordinary care. The duty may arise from statute, or it may arise from ordinance, from contract, or from the relation of the parties. Apart from specific statute the law imposes upon every person the duty of using his own property so as not to injure his neighbor. As conditions change and modes of life alter, the duty to observe ordinary care in the use of one’s own property, while not altering in its essentials, will alter in its details. What ordinary care demands depends always upon the circumstances of the case, an important factor among which is the fact whether the injury could or could not have reasonably been anticipated from the acts done or left undone by the defendant. When the state was established it was not in general unsafe to permit domestic animals to run at large in the highway outside of the confines of municipalities, and damages from so doing could not generally be reasonably anticipated. With the growth of traffic, particularly automobile traffic, the situation is changed, but the duty to observe ordinary care remains the same. This duty in modern times requires that the owner of live stock exercise ordinary care not to let his live stock out onto a much-traveled highway, because under our modern traffic conditions he can reasonably anticipate that if the live stock stray onto such a highway they are apt to damage persons or property.” See, also, Stewart v. Wild, 196 Ia. 678, 195 N. W. 266; Klenberg v. Russell, 125 Ind. 531, 25 N. E. 596; Fox v. Koehnig, 190 Wis. 528, 209 N. W. 708, 49 A. L. R. 903.
We note the challenge to the correctness of the amount of recovery, and the contention that the cost of repairs was the proper measure of damages in the instant case. In view of the evidence actually received at the trial, the instructions given by the trial court properly submitted that question to the determination of the jury.
It follows, therefore, that, no substantial error appearing, the judgment of the trial court is correct, and is
Affirmed.