Armann v. Caswell
| Decision Date | 14 May 1915 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Pembina County, Kneeshaw, J.
Affirmed.
Geo Peterson, for appellant.
Our statute makes it unlawful for cattle to run at large at any time. Laws 1913, chap. 178, Comp. Laws 1913, §§ 2617-2622.
But because cattle happen to be on the highway, it does not follow that they are running at large. "Running at large" means not under control of the owner; animals that are left and permitted to roam where they may go. Hinman v. Chicago, R. I. & P. R. Co., 28 Iowa 491; Grove v. Burlington, C. R. & N. Ry. Co., 75 Iowa 163, 39 N.W. 248; Russell v. Cone, 46 Vt. 600; Wright v. Clark, 50 Vt. 130, 28 Am. Rep. 496.
When merely upon a highway an animal is not at large, unless by some statute its presence there is made to constitute a running at large. 2 Cyc. 443, P 3; McManaway v Crispin, 22 Ind.App. 368, 53 N.E. 840; Beeson v Tice, 17 Ind.App. 78, 45 N.E. 612, 46 N.E. 154; Kanakanui v. Manini, 8 Hawai'i 710.
An animal on land of its owner, or on the land of another with permission, is not at large. 2 Cyc. 443, and cases cited.
Pasturing on the highway to the center thereof is not at large. Parker v. Jones, 1 Allen, 270.
The fee to a highway is in the landowner. The right of the public to use same is a mere incident. 15 Am. & Eng. Enc. Law, 2d ed. 415, P XII, and cases cited, 416 P 2, and cases cited.
The accidental killing of an animal will not relieve from liability, even if the animal was at large. 2 Cyc. 418, 433, and cases cited.
The common-law duty of the owner and operator of an automobile upon the highway is to use it with that degree of prudence and consideration for the rights of others which is consistent with their safety. Shinkle v. McCullough, 116 Ky. 960, 105 Am. St. Rep. 249, 77 S.W. 196, 15 Am. Neg. Rep. 63; Knight v. Lanier, 69 A.D. 454, 74 N.Y.S. 999, 12 Am. Neg. Rep. 157; Murphy v. Wait, 102 A.D. 121, 92 N.Y.S. 253.
It is the duty of such person to keep a proper lookout, and to keep his machine under such control as will enable him to avoid collisions, and, if necessary, he shall slow up and stop. Thies v. Thomas, 77 N.Y.S. 276; Buscher v. New York Transp. Co., 106 A.D. 493, 94 N.Y.S. 798, 18 Am. Neg. Rep. 575; Knight v. Lanier, 69 A.D. 454, 74 N.Y.S. 999, 12 Am. Neg. Rep. 157; Kathmeyer v. Mehl, N.J.L. , 60 A. 40, 17 Am. Neg. Rep. 688; Hennessey v. Taylor, 189 Mass. 583, 3 L.R.A. (N.S.) 345, 76 N.E. 224, 4 Ann. Cas. 396, 19 Am. Neg. Rep. 285; Davis v. Maxwell, 108 A.D. 128, 96 N.Y.S. 45.
His degree of care must be commensurate with its liability to do injury. Hannigan v. Wright, 5 Penn (Del.) 537, 63 A. 234; Clune v. Wright, 96 Wis. 630, 71 N.W. 1041; McIntyre v. Orner, 166 Ind. 57, 4 L.R.A. (N.S.) 1130, 117 Am. St. Rep. 359, 76 N.E. 750, 8 Ann. Cas. 1087; Harlow v. Standard Improv. Co., 145 Cal. 477, 78 P. 1045.
In this case, the defendant, in speeding up his machine before he was past the cow he struck, did not use "reasonable" care. Kessler v. Washburn, 157 Ill.App. 532; Thies v. Thomas, 77 N.Y.S. 276; Navailles v. Dielmann, 124 La. 421, 134 Am. St. Rep. 508, 50 So. 449; Garside v. New York Transp. Co., 146 F. 588; Caesar v. Fifth Ave. Coach Co., 45 Mich. 331, 90 N.Y.S. 359.
The true question is whether the accident could have been avoided by using ordinary care. Arseneau v. Sweet, 106 Minn. 257, 119 N.W. 46; Simeone v. Lindsay, 6 Penn. (Del.) 224, 65 A. 778; Hannigan v. Wright, 5 Penn. (Del.) 537, 63 A. 234.
Courts will take judicial notice of the fact that automobiles on the highway have a tendency to frighten animals. The driver therefore should use due care to prevent accidents. Rochester v. Bull, 78 S.C. 249, 58 S.E. 766; McCummins v. State, 132 Wis. 236, 112 N.W. 25; Salminen v. Ross, 185 F. 997.
A cyclist has the burden of disproving negligence, when he rides up behind another who is walking where he has the right to walk, and, without giving any warning strikes and injures such person. Myers v. Hinds, 110 Mich. 300, 33 L.R.A. 356, 64 Am. St. Rep. 345, 68 N.W. 156; Spina v. New York Transp. Co., 96 N.Y.S. 270; Heath v. Cook, R. I. , 68 A. 427; 38 Cyc. 1602, et seq. PP "e" and "f" and cases cited; 46 Century Dig. §§ 569, 570, 584, and cases cited.
Any intelligent person who saw the machine at the time in question, being held competent to testify as to its speed, the qualification of the witness to judge accurately goes to the weight of such testimony, rather than to its competency Shaffer v. Coleman, 35 Pa. S.Ct. 386; Wolfe v. Ives, 83 Conn. 174, 76 A. 526, 19 Ann. Cas. 752; Matla v. Rapid Motor Vehicle Co., 160 Mich. 639, 125 N.W. 708; Miller v. Jenness, 84 Kan. 608, 34 L.R.A. (N.S.) 782, 114 P. 1052; Neidy v. Littlejohn, 146 Iowa 355, 125 N.W. 198; Porter v. Buckley, 78 C.C.A. 138, 147 F. 140; Johnson v. Coey, 237 Ill. 88, 21 L.R.A. (N.S.) 81, 86 N.E. 678; Zoltovski v. Gzella, 159 Mich. 620, 26 L.R.A. (N.S.) 435, 134 Am. St. Rep. 752, 124 N.W. 527; Hough v. St. Louis Car Co., 146 Mo.App. 58, 123 S.W. 83; Dugan v. Arthurs, 230 Pa. 299, 34 L.R.A. (N.S.) 778, 79 A. 626; State v. Watson, 216 Mo. 420, 115 S.W. 1011.
As to the weight to which such opinion evidence is entitled, is wholly a matter for the jury. Himmelwright v. Baker, 82 Kan. 569, 109 P. 178; Nesbit v. Crosby, 74 Conn. 554, 51 A. 550; United Breweries Co. v. O'Donnell, 221 Ill. 334, 77 N.E. 547; Brown v. Swanton, 69 Vt. 53, 37 A. 280; Myers v. McFarland, 31 Pa. Co. Ct. 49.
Gray & Myers and J. E. Garvey, for respondent.
It is beyond dispute that, at the time of the accident, the cattle were running at large.
Where cattle are left to stray at will along the public highway without anyone in immediate attendance upon them or claiming any oversight of them, they are, for such time, "running at large." Donley v. Fowler, 147 Mich. 288, 110 N.W. 1097; Nehr v. State, 35 Neb. 638, 17 L.R.A. 771, 53 N.W. 589.
The words, "running at large," in the sense in which they are used, mean running on the public highway or road, or off from the owner's premises without any person in charge or near at hand with oversight. Leonard v. Doherty, 174 Mass. 565, 55 N.E. 461, 7 Am. Neg. Rep. 55; Allen v. Hazzard, 33 Tex. Civ. App. 523, 77 S.W. 268; Decker v. McSorley, 111 Wis. 91, 86 N.W. 554; Goener v. Woll, 26 Minn. 154, 2 N.W. 163.
In no aspect do the facts in this case raise a presumption of negligence on the part of the defendant. 29 Cyc. 589--C; Heckman v. Evenson, 7 N.D. 173, 73 N.W. 427; Pyke v. Jamestown, 15 N.D. 157, 107 N.W. 359; Pendroy v. Great Northern R. Co., 17 N.D. 433, 117 N.W. 531; Kunkel v. Minneapolis, St. P. & S. Ste. M. R. Co., 18 N.D. 367, 121 N.W. 830; Solberg v. Schlosser, 20 N.D. 307, 30 L.R.A. (N.S.) 1111, 127 N.W. 91.
A witness need not be an expert in order to be permitted to give his opinion of the rapidity of motion of familiar objects like railway trains and street cars, but he must be shown to have had and to have availed himself of an opportunity for observation in the case in hand. Mathieson v. Omaha Street R. Co., 3 Neb. (Unof.) 743, 92 N.W. 639; Wright v. Crane, 142 Mich. 508, 106 N.W. 71, 19 Am. Neg. Rep. 336.
It is the rule of the law of damages that where an animal is killed and its body possesses a monetary value, the measure of damages is the difference between the animal alive and its value after death. 13 Cyc. 149; Atchison, T. & S. F. R. Co. v. Bivins, Tex. Civ. App. , 136 S.W. 1180; Boing v. Raleigh & G. R. Co., 91 N.C. 199; Roberts v. Richmond & D. R. Co., 88 N.C. 560.
There is no evidence on this matter in this case. Kime v. Bank of Edgemont, 22 S.D. 630, 119 N.W. 1003; Munier v. Zachary, 138 Iowa 219, 18 L.R.A. (N.S.) 572, 114 N.W. 525, 16 Ann. Cas. 526, Greene v. Murdock, 1 Cal.App. 136, 81 P. 993; Ingemarson v. Coffey, 41 Colo. 407, 92 P. 908; Morrow v. Laverty, 77 Neb. 245, 109 N.W. 150; State Bank v. Carroll, 81 Neb. 484, 116 N.W. 276.
Plaintiff is a farmer living about one mile and a half west of the village of Gardar on the road to Milton. Said public road between said villages divides plaintiff's farm almost in two, from east to west, is graded, and has a ditch and fence on each side thereof. At one side of the road is a telephone wire strung upon poles. Plaintiff's buildings are north of said road between 250 and 275 feet therefrom, and there is a lane running from the buildings to said road. The intervening ground is covered with timber and undergrowth, being situated some short distance from the Park river. Further from the road than the buildings is a creek at which plaintiff's stock were accustomed to drink. Across the road from the buildings and about 40 rods east thereof, plaintiff has a little pasture of 11 acres in which upon the 31st of October, 1913, he was pasturing about 20 head of cattle. Shortly before 4 o'clock in the afternoon of said day, plaintiff's father went to this pasture for the purpose of bringing said cattle therefrom to the buildings for water. This necessitated the opening of the gate from the pasture, so that the cattle might pass out upon the public road aforesaid along which they would proceed and up the lane leading to the house, on their way to water in the creek aforesaid. On this occasion, however, the old gentleman decided to allow the cows to make their way home, and proceeded himself through the bushes and trees to the buildings where plaintiff and a hired man were working. The cattle, left alone, were making their way leisurely along the highway towards the lane which led to plaintiff's buildings, when defendant came from the west along the Milton road. He was at that time a traveling salesman of the Standard Oil Company, an elderly man, and making his territory by auto upon the company's...
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