196 P. 844 | Nev. | 1921
Lead Opinion
By the Court,
This action was brought to recover damages for the loss of certain cattle running on the public range, which were killed by drinking cyanide solutions. The case was tried before the court without a jury, and judgment was rendered in favor of respondent for the value of cattle destroyed in the amount of $860. A motion for a new trial was made, which was denied by the court. From the judgment and order of the court denying its motion for a new trial, the mining company appeals.
The respondent moved to strike the bill of exceptions and record on appeal upon the ground that it was not properly certified. As we have concluded to affirm the judgment of the lower court on the merits, we will not pass upon the motion.
The salient facts are substantially as follows:
The appellant is a mining company and is engaged in the business of mining in this state. On March 29, 1918, and for a number of years prior thereto, this company owned and operated a mill at the town of Wonder, in Churchill County, Nevada. The cyanide solutions discharged from the mill flowed down a slope for a mile or so and were there collected in a pond. The pond was situate for the most part on mining ground owned by the mining company, but extended over onto the public domain. These cyanide solutions are highly poisonous, and, as they resemble water, are attractive to cattle and other live stock. These facts were known to the company, which, in order to protect stock from the danger, kept the pond fenced with a barbed-wire fence, and posted notices about the pond warning the owners of
The respondent is a corporation engaged in the livestock business, and it and its predecessors in interest, on March 29, 1918, and for a long time prior thereto, had cattle running on the public range in the vicinity of the pond. On this date fourteen head of respondent’s cattle came from the open range to where the cyanide solutions had broken through and flowed beyond the fence line. They drank of the solutions and were killed. The place where the cattle were killed was on the appellant’s land. At this point the fence was in good condition, but at another point about a quarter of a mile from where the cattle were killed the fence was in such a poor condition that a person, on the day before, was able to ride a horse over the wires, which were submerged in the mud, and drove cattle that had gotten inside the inclosure out over the wires. After the cattle were killed, and on the same day, it appears that respondent extended the fence back from the pond and beyon$ the dead cattle.
On the day the cattle were killed, one Caldwell, who was in charge of respondent’s cattle, saw a bunch of cattle headed toward the pond. He intercepted them and, driving them back a distance of a quarter to a half a mile, turned and rode over to the town of Wonder to get his mail. When he left them the cattle were headed away from the pond and were something like one-half mile therefrom. After talking with a person about fifteen minutes he rode to the postoffice, and while he was getting his mail out of the box he was informed that
According to the testimony of two witnesses who saw the cattle coming over the open range, and saw Caldwell intercept them, as soon as he left them they turned back and continued their j ourney toward the pond.
The trial court was of the opinion, expressed in its written decision, that Caldwell was not guilty of negligence, and held that the negligence of the appellant in permitting the cyanide solutions to escape from the pond and flow outside of the fence was the proximate cause of the death of the cattle and consequent inj ury to respondent.
Appellant’s main contention is thus summarized by its counsel: That the evidence shows without contradiction or conflict that plaintiff’s herder, John Caldwell, was in charge of the cattle on March 29, 1918; that he was fully cognizant of the danger threatening the cattle; that he had the power to protect the cattle from said danger, and that he failed and neglected to take such measures; and that his said failure was the sole and proximate cause of the death of the cattle.
Appellant makes certain other contentions, but the facts of this case do not bring it within the principles recognized and applied by the authorities cited. This is a case involving the right of cattle to run at large upon the public range of this state, and does not come within the doctrine that a recovery for damages is barred where the owner of live stock turns them loose unattended in the face of known danger; or where a herder of live stock drives them or negligently allows them to go into known danger, as in the case of Sierra Land & Stock Company v. Desert Power & Mill Company, decided in' the federal court of the district of Nevada.
“is not permitted negligently to leave on his premises poisonous substances which will attract passing animals, nor can he place thereon dangerous instrumentalities, as traps baited with strong-scented meats, set so near the highway on the grounds of another- that the animals of others will be lured on to his land from the place where they rightfully are to their injury or destruction. This results from the principle that where there is invitation, enticement, allurement, or attraction, a person is bound, at his peril, to use reasonable care and diligence*34 in keeping his property in a safe condition.” 1 R. C. L. 1133, 1134.
The pond and its feeder from the mill were situated for the most part on appellant’s mining claims, but in some parts extended onto the public domain. The contents were highly poisonous, and resembled water. The pond covered a considerable area and from the descriptions of it given by witnesses and furnished by the photographs in evidence, it must, at a distance, have had the appearance of a small lake of water. It was in open view of the cattle or other stock running upon the sur-' rounding range. Watering places for cattle on the range were few and widely separated. Withal, the pond was highly attractive to thirsty cattle on the range and did allure them to its vicinity in search of water. The case of Beinhorn v. Griswold, 27 Mont. 79, 69 Pac. 557, 59 L. R. A. 771, 94 Am. St. Rep. 818, is relied upon by appellant as establishing the doctrine that a mine owner is not liable for cattle straying from the public domain onto unfenced mining property and drinking cyanide water. But there is a clear distinction between a case where animals stray upon premises, and where they are lured there by the appearances or conditions that appeal to their instincts and which are capable of destruction or injury. The former is governed by the same principle that obtains where a trespasser or bare licensee goes upon the premises of another who is bound thereby not to wilfully or wantonly injure him or fail to exercise due care to avoid it after his presence is discovered in a place of danger; while the latter rests upon the same principle that is recognized where one is brought upon the property of another by invitation, express or implied, and which imposes upon the owner the duty of keeping his premises in a reasonably safe condition. In the case of Beinhorn v. Griswold, supra, the cattle wandered upon the mine and mill site of the defendant and drank the poisonous liquid contained in vats or tubs which were not sufficiently covered. The
Consideration of cases decided on different facts furnishes little aid. We are referred to the case of Sierra Land & Live Stock Company v. Desert Power & Mill Company, supra. In that case the sheep were killed by drinking cyanide water, but it appears that they were in charge of a herder who drove them to it after being warned repeatedly of the danger. The case of Crosman v. Southern Pacific Co., 42 Nev. 92, 173 Pac. 223, decided by this court, is cited as parallel in principle, but there the defendant charged with the exercise of reasonable care displayed none whatever, but recklessly placed himself in a position of known danger. The facts are widely variant from the instant case. Caldwell displayed diligence in discovering the cattle going toward the pond for water and in driving them back to what he judged was a reasonable distance from the pond.
The j udgment of the lower court is affirmed.
Concurrence Opinion
concurring:
The sole question is: Was Caldwell guilty of negligence in failing to drive the cattle farther off? If the facts are undisputed, and admit of but one inference, the question is one of law; if disputed, or if capable of different inferences, it is a question of fact.
Conceding that the facts are not disputed, might reasonable persons draw opposite inferences as to the existence or nonexistence of negligence on the part of Caldwell ? I am of the opinion that they might. I think the case falls squarely in the class alluded to in the quotation by this court in Solen v. V. & T. R. R. Co., 13 Nev. 129, from Railroad v. Stout, 17 Wall. 663, as follows:
“Upon the facts proven in such cases, it is a matter of judgment and discretion, of sound inference, what is to be the deduction to be drawn from the undisputed facts. Certain facts we may suppose to be clearly established from which one sensible impartial man would infer that proper care had not been used, and that negligence existed; another man, equally sensible and equally impartial, would infer that proper care had been used*39 and that there was no negligence. It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men. of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man; that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge.”
Applying the rule thus stated to the facts of the case, I think the question of Caldwell’s negligence was one of fact for the trial court to determine, and that its finding is conclusive upon us.
Dissenting Opinion
dissenting:
I dissent.
I concede that where a cause is tried by the court without a jury, the same weight and consideration is given to its findings as to a verdict; and the same rules apply as to reversing them on appeal, on the ground of being contrary to evidence, as to a verdict of a jury. State v. Yellow Jacket S. M. Co., 5 Nev. 415. It follows that in this class of cases, as well as in all others, if there be substantial evidence to support the findings they cannot here be disturbed. But those findings must themselves be based upon legal and admissible evidence. Rulofson v. Billings, 140 Cal. 452, 74 Pac. 35.
I am of the opinion that the admission of evidence tending to show the bad repair and condition of the fence surrounding defendant’s solutions pond, and the extension of the fence line after the injury so as to inclose the point where the cattle drank the cyanide
Counsel for appellant frankly admits that if the respondent’s cattle had been at large, as the phrase at large is employed in connection with cattle grazing, unattended, upon the public domain, the Nevada Wonder Mining Company would be liable, and he states expressly, in his brief, that this case is brought here for review for the purpose of obtaining an expression from this court as to whether or not, under the undisputed facts, the plaintiff’s conduct with regard to the cattle, as a matter of law, directly contributed to the death of the cattle so as to bar recovery for their value.
There are a vast variety of things which 'must be regarded as matters of common knowledge; things which every adult person of ordinary experience or intelligence must be presumed to know; things which do not require to be pleaded or to be made the subjects of specific proof; and it is not within the province of a court or jury to find contrary to this knowledge. Gilbert v. The Flint & P. M. Ry. Co., 51 Mich. 488. The question before us comes within this principle.
The lower court found it to be the fact:
“That there is no available water in that vicinity suitable for cattle to drink; that it was natural for said cattle, impelled by thirst and uncontrolled and unrestrained and unattended, to come to the said water containing said solutions upon defendant’s premises and to drink the same.”
It is said that “what the community as a whole knows regarding animals the court knows.” Chamberlayne on Modern Law of Evidence, sec. 767. And the latent trait of animals can be ascertained only by symptoms and outward manifestation. Sydleman v. Beckwith, 43 Conn. 9.
The rule is firmly established that when the facts are undisputed or clearly settled, and the course which common prudence dictated can be so clearly discerned that only one inference can be drawn, the question of negligence is one of law. 1 Shearman & Redfield on the Law of Negligence (6th ed.), sec. 56.
My associates, reasoning from the given state of facts, are of the opinion that Caldwell’s care and diligence with regard to the cattle is to be measured by what an ordinarily prudent man would have done under the same circumstances, and whether he was negligent or not is a question concerning which reasonable men might honestly differ in opinion. I am not in accord with this position. Where one occupies a position, such as that of a “cow bos's,” employed to protect the interests of the live stock of his employer that -roam unattended over the public domain in the vicinity of known danger, such as that of a cyanide reduction plant, care and diligence vary according to the exigencies which require vigilance and attention, conforming in amount and degree to the
The cattle in question, though range cattle, came under the immediate observation and control of Caldwell, and, being in his hands, he was bound to use the same care in regard to them that men of ordinary prudence would exercise over their own property under the same circumstances. Maynard v. Buck, 100 Mass. 40. The degree of care required of one intrusted with the property of another is not less than that which is to be expected of one who deals with his own property. He is bound to exercise that degree of care and diligence which the nature of the undertaking and the time, place, and circumstances of the performance ordinarily and reasonably demand. Mechem on Agency (2d ed.), sec. 1275. The peril of leaving the cattle unattended, within reach of the cyanide water, must have been obvious to any man of ordinary intelligence, and much more so to an experienced “cow boss.”
In this instance the person charged with the duty pertaining to his general undertaking to protect the interests of the particular and of all plaintiff’s live stock from known dangers, however caused or created, voluntarily left the cattle intrusted to his care to follow their natural propensities, which led them to certain and sudden death. If there could be any reasonable doubt or uncertainty about what common prudence dictated under such circumstances, or as to what men of ordinary prudence would have done under the same circumstances with their own property, I might find some excuse for holding Caldwell’s conduct to be proper and justifiable; but, as I view the facts, the course which common prudence dictated is so clear that but one inference can be drawn, and that is that the death of the cattle resulted from Caldwell’s neglect or failure to exercise and observe the precautions ordinarily pursued in relation to his particular business of protecting the interests of the cattle in question from the known and impending danger.
Rehearing
On Petition for Rehearing
Rehearing denied.