Burback v. Bucher

• Decision Date: 06 October 1960
• Docket Number: No. 35167,35167
• Citation: 355 P.2d 981,56 Wn.2d 875
• Parties: Tommy E. BURBACK and Sandra Burback, his wife, Appellants, v. Werner BUCHER and Jane Doe Bucher, his wife, Respondents.
• Court: Washington Supreme Court

Page 875

56 Wn.2d 875

355 P.2d 981

Tommy E. BURBACK and Sandra Burback, his wife, Appellants, v. Werner BUCHER and Jane Doe Bucher, his wife, Respondents.

No. 35167.

Supreme Court of Washington, Department 2.

Oct. 6, 1960.

Rehearing Denied Dec. 5, 1960.

Weyer, Roderick, Schroeter & Sterne, Seattle, for appellants.

William J. Madden, Bayley, Fite, Westberg & Madden, Seattle, for respondents.

ROSELLINI, Judge.

The appellant Tommy E. Burback (hereafter called the appellant) was injured when an automobile in which he was a passenger collided with a herd of cattle on primary state highway No. 5, just outside the city limits of Renton. He brought this suit against the owners of the herd.

The rights and duties of the respondents are set forth in RCW 16.24.070, which provides:

'It shall be unlawful for any person to cause or permit any livestock to graze or stray upon any portion of the right-of-way of any public highway of this state, within any stock restricted area. It shall be unlawful for any person to herd or move any livestock over, along or across the right-of-way of any public highway, or portion thereof, within any stock restricted area, without having in attendance a sufficient number of persons to control the movement of such livestock and to warn or otherwise protect vehicles traveling upon such public highway from any danger by reason of such livestock being herded or moved thereon. * * *'

The jury, which was instructed in accordance with this provision, returned a verdict in favor of the respondents.

Assignments of error are placed in three groups for argument. The first group has as its premise the proposition that the court should have granted the appellant's motion for summary judgment before the trial. The granting of such a motion is proper only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, and no genuine issue remains for trial. It is not the purpose of the rule to cut litigants off from their right of trial by jury if they really have issues to try. Capitol Hill Methodist Church of Seattle v. City of Seattle, 52 Wash.2d 359, 324 P.2d 1113.

The appellant in his brief does not designate the admissions or undisputed facts upon which he predicates his contention that there existed at the time of the hearing on the motion for summary judgment no material issue of fact, but simply refers to the transcript and states that his reasons are set forth therein. This is not sufficient to bring them before the court for its consideration. Rule 42(1)(f) on Appeal, RCW Vol. 0, provides that each error relied upon shall be clearly pointed out and discussed under appropriately designated headings in the brief; and rule 42(3)(d) provides that the brief shall contain the argument of appellant.

Aside from that fact, it is apparent from the briefs and the record that there have been material issues of fact throughout the proceedings in this case. It was for the jury to decide whether the respondents were guilty of negligence and whether any negligence of theirs was a proximate cause of the accident. The appellant points to no admission of the respondents, in the pleadings or otherwise, which would determine either of these issues in his favor.

Much of his contention is based on the premise that the respondents were required, as a matter of law, to place cattle-crossing signs on the highway whenever they were herding their cattle across it, and had admitted that they did not do so in this instance. If there were such a requirement, there would still remain for the jury the question of whether the failure to place such signs was a proximate cause of the accident. However, we do not agree with the appellant's premise. It is based upon his theory that a permit which was issued to the respondents, at their request, by the highway department in 1949, required them to place such signs upon the highway. The permit gave them permission to place signs upon the highway provided they took certain designated precautions. This permit does not purport to impose upon the respondents a positive duty to use the signs, but simply states the conditions under which they may be used. According to the evidence, the signs were used only during daylight herding and were considered inadequate at night, when red lanterns and flashlights were used.

There has been brought to our attention no statute which places upon the highway department the duty, or gives it the authority, to promulgate regulations governing the use of the highways for the herding of cattle. The appellant cites statutes pertaining to the placing of obstructions along the highways, but these do not provide for the regulation of livestock herding where no stationary obstructions are used. If the permit were open to the construction placed upon it by the appellant, it would not be effective to define the duty of the repondents, which has been clearly set forth in the quoted statute.

The appellant urges that the court erred in refusing to hold that the respondents' cattle upon the road constituted a nuisance, as defined by RCW 7.48.010, 7.48.020, and 7.48.140. Each of these definitions pertains to an unlawful act, omission, or condition.

The owners of cattle have a fundamental and historic right to the use of the highways. The legislature has limited that right, as reflected in RCW 16.24.065 and 16.24.070. If in the exercise of these rights another user of the highways is injuryed the injured party has a complete remedy under the law of negligence. To have injected...