Carver v. Kinnett
| Decision Date | 16 July 1993 |
| Docket Number | A93A0343,Nos. A93A0342,s. A93A0342 |
| Citation | 434 S.E.2d 136,209 Ga.App. 577 |
| Parties | CARVER v. KINNETT. SNOW v. KINNETT. |
| Court | Georgia Court of Appeals |
Andrew, Threlkeld & Thompson, Reid A. Threlkeld, Richard S. Thompson, Vidalia, for Carver.
Preston & Preston, Robert H. Preston, Douglas, for Snow.
Miles, Baker & Morris, Keith M. Morris, Baxley, Fred R. Kopp, Alma, for appellee.
Appellee brought this action to recover for injuries sustained when the truck and trailer he was driving collided with a herd of cows, allegedly owned by appellants, Joel Carver and Ronnie Snow, which were in the right-of-way. Appellee contends appellants were negligent in maintaining the proper fencing to keep their cows off the right-of-way. At the end of appellee's case, appellant Carver's motion for directed verdict was denied, and after appellant Snow rested his case, his motion for directed verdict was also denied. A jury trial resulted in a verdict for appellee in the amount of $39,586.48. The trial court denied appellants' motions for judgment n.o.v., or in the alternative, motions for new trial, and this appeal followed.
1. Appellants contend the trial court erred in denying their motions for judgment n.o.v., or in the alternative, motions for new trial because there was no evidence of their negligence. " ... Austin v. Kaufman, 203 Ga.App. 704, 707(1), 417 S.E.2d 660 (1992).
Viewed in the light most favorable to appellee, the evidence reveals that appellee was traveling on Highway 268 at night when he collided with a herd of approximately 20-25 cows which were situated in the right-of-way and on the shoulders of the road. Appellee suffered a sprained back, and three of the cows were killed upon impact. Both Carver and Snow admitted their cows had strayed from their properties on numerous prior occasions in addition to the night of the accident. Shortly after his arrival at the scene of the accident, Carver's son, Terry, drove all the cows into Carver's pasture. Witnesses testified that Carver's cows weighed at least 700 pounds and had yellow or red tags on their ears and that Snow's cows were considerably smaller with no tags. Terry Carver testified that at least one of the dead cows looked like one of his father's cows. However, none of the people who saw the dead cows and testified at trial saw tags in the cows' ears. Upon his arrival at the accident site on the following morning, Snow claimed ownership of the three dead cows. He then proceeded to drive 13 cows from Carver's pasture back to his property. At trial, contrary to his initial admission of ownership of the dead cows, Snow testified that after he drove the cows back onto his property, he determined that no cows were missing from his herd of 18 or 19 after the accident. Snow also testified that he inspected his fences once a week or every two weeks and that on the morning following the accident, he discovered that a chinaberry tree had fallen across a portion of his fence which he claimed enabled his cows to escape on the night of the accident. Snow testified that the tree had fallen on the night of the accident. However, he did not see the tree fall, and he admitted that there were no unusual weather conditions that night.
Carver testified that he was out of town on the night of the accident; that upon his return home, he determined that none of his cows was missing; that he inspected his fences at least once a week; and that after the accident, he discovered that his cows had torn down a portion of his fence. Carver indicated that it appeared as though cows on both sides of the fence had been fighting and in the process tore the fence down.
Appellee offered the testimony of James Spires as proof that Carver and Snow were negligent in maintaining the fences on their properties. Spires testified that although the height of a fence may vary, depending on the size of the cows one has, a fence should typically be between 55 and 58 inches tall to prevent a cow from placing its head over or through a fence; that once a cow determines that its head can fit through a fence, it is likely to attempt to walk through the fence; that while the barbed wire across the top of Carver's fence was fairly tight, the mesh wire underneath sagged, making it possible for a cow to get its head under the barbed wire and over the fence; and that the height of the fence up to the barbed wire was only approximately 46 inches. When asked whether Carver's fence was adequate to contain the cows, Spires opined that it would be questionable because the fence was not tall enough, the mesh was not tight enough, and the mesh did not extend to meet the barbed wire. He indicated that it appeared as though a cow had already placed its head through the fence. On cross-examination, Spires admitted seeing Carver's fence for the first time six months after the accident; however, there was no evidence that the fence looked any differently at the time of the accident.
Regarding Snow's fence, Spires testified that it was in worse shape than Carver's fence; that it was inadequate to keep the cows in; that the fence showed years of wear; that the fence was broken in certain places; that trees had grown into the fence; and that it appeared as though parts of the fence had been abandoned. In addition, the evidence reveals Snow had received numerous complaints in the past regarding the escape of his...
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