O'Connor v. Black

• Decision Date: 02 June 1958
• Docket Number: No. 8548,8548
• Citation: 326 P.2d 376,80 Idaho 96
• Parties: James M. O'CONNOR, Plaintiff-Appellant, v. Shirley BLACK, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 376

326 P.2d 376

80 Idaho 96

James M. O'CONNOR, Plaintiff-Appellant, v. Shirley BLACK, Defendant-Respondent.

No. 8548.

Supreme Court of Idaho.

June 2, 1958.

Bistline & Bistline, Pocatello, for appellant.

O. R. Baum, Ruby Y. Brown, Pocatello, for respondent.

SMITH, Justice.

Appellant, about 2:00 o'clock A.M., September 14, 1954, alone in his automobile was traveling southeasterly on U. S. Highway 30, some eight miles northwest of Montpelier where the highway rises on a slight curve. Appellant, upon reaching the crest of the curve, saw ahead a herd of some twenty cattle on the highway in the area lighted by the lights of his car. The cattle belonged to respondent.

Appellant applied his brakes and turned his automobile to the right in an effort to avoid a collision, but hit one cow. The automobile came to rest in the borrow pit some seventy feet southeasterly of the point of impact, and the cow some twenty to thirty feet further southeasterly from the car.

Respondent kept about twenty cattle in a pasture situate approximately three-fourths of a mile from the highway. The pasture was enclosed on three sides by a barbed wire fence, and on its remaining farthest or easterly side from the highway by an electric fence. Respondent, after the accident, discovered that his south side wire fence was broken at a place facing a county road leading to the highway.

Appellant suffered injury to his person and his automobile resulting from the collision. He commenced action against respondent seeking recovery of general and special damages on account of such injuries which he alleged were proximately caused by respondent's negligence in failing to control his cattle and permitting them to be upon the highway knowing it to be heavily traveled.

Respondent in his answer denied negligence on his part, and alleged appellant's contributory negligence. Respondent then alleged that the wire fence enclosing three sides of his pasture, was constructed as required by statute, and that the cattle broke through it during the evening of the accident, and entered the highway; that he discovered his cattle when he proceeded to the highway after having been advised of the accident, and observed where they had broken through the fence.

Respondent then cross-complained against appellant, seeking to recover his damage occasioned by the loss by death of the cow struck by appellant's automobile allegedly due to appellant's negligence. Appellant denied the material allegations of the cross-complaint.

The trial court during trial denied respondent's motions for a nonsuit and a directed verdict. The jury returned a verdict for damages in favor of respondent on his cross-complaint. Appellant appealed from the resulting judgment.

Appellant assigns errors of the trial court in giving to the jury certain instructions and in refusing a requested instruction.

Instruction No. 9, of which appellant complains, reads:

'You are instructed that it was the duty of the driver of the car during the time to have his car under such control that it could be brought to a stop within the range of his vision; that is, it would be negligence on his part if he drove his car at a rate of speed faster than would permit him to stop within the distance which his lights enabled him to see.'

This Court in Maier v. Minidoka County Motor Co., 61 Idaho 642, 650, 105 P.2d 1076, 1079, stated the rule to be:

'Generally it is negligence as a matter of law, or at least strong evidence of negligence, for a motorist to operate his automobile on a highway at such a speed that the automobile cannot be stopped within the distance within which objects can be seen ahead of the automobile. Goodman v. Wisby, 152 Kan. 341, 103 P.2d 804. This court has placed its approval upon the doctrine that one driving at nighttime must proceed at such rate of speed that he may be able ordinarily to stop short of an object appearing in the radius of his lights.' (Emphasis supplied).

And in Pittman v. Sather, 68 Idaho 29, 34, 188 P.2d 600, 603, this Court stated:

'The rule laid down in the Maier case, supra, does not require that one be able absolutely to stop short of an object appearing in the radius of his lights, regardless of existing conditions, but only that he drive at night at such a speed as to be able ordinarily to so stop. Whether respondents were or were not negligent in driving at such a speed as not to be able to stop before the collision, was a question for the jury to determine under all the evidence.'

See, also, Stanger v. Hunter, 49 Idaho 723, 291 P. 1060; Baldwin v. Mittry, 61 Idaho 427, 102 P.2d 643.

Appellant's assignment is meritorious. Instruction No. 9 failed to state the correct rule applicable in such a case.

Appellant next assigns as error the giving or certain jury instructions relating to the burden of proof, viz., Instruction No. 10, as follows:

'You are instructed that in order for the driver of an automobile to recover damages from the owner of an animal on the highway that the plaintiff must prove that the animal was loose on the highway as a result of its being intentionally turned loose or on account of the negligent failure of its owner to keep said animal confined.'

and Instruction No. 16, reading:

'You are instructed that the burden is on the plaintiff to prove by a preponderance of the evidence that the animal which plaintiff contends was unattended on the highway was there because its owner had failed to exercise due care in enclosing it under all the surrounding facts and circumstances.'

and Instruction No. 17, reading:

'You are instructed that the care and diligence that every man is required to exercise in the protection of himself and his property is ordinary care, in view of all the surrounding circumstances, and if you find that the stock were the ordinary and customary stock grown in that immediate vicinity and the fence such as is generally required to restrain that kind of stock, and they escape without his fault, the defendant was not guilty of negligence.'

Instructions Nos. 10 and 16 appear to be founded upon the law announced by the Supreme Court of Kansas, that the doctrine of res ipsa loquitur is not applicable in an action by a motorist to recover damages resulting from striking an animal loose on a highway. Wilson v. Rule, 169 Kan. 296, 219 P.2d 690; Abbott v. Howard, 169 Kan. 305, 219 P.2d 696. This Court, upon comparing and distinguishing the Kansas rule, in Shepard v. Smith, 74 Idaho 459, 263 P.2d 985, 988, held the doctrine of res ipsa loquitur to be applicable in this State in a similar case as here; applying that doctrine this Court said:

'* * * it [the doctrine of res ipsa loquitur] should be applied at least to the extent of requiring the owner of animals thus unattended upon a heavily traveled highway within the limits of a village, to satisfactorily explain their presence, in order to avoid an otherwise justifiable inference of negligence. * * *.'

In Round v. Burns, 77 R.I. 135, 74 A.2d 861, 863, 20 A.L.R.2d 1048, the rule is stated:

'* * * ordinarily the mere presence of a horse going loose and unattended on the highway is prima facie evidence of the negligence of the owner unless he rebuts it.'

And in Mercer v. Byrons, 1 Cir., 1952, 200 F.2d 284, 286, appears a digest of many authorities in support of the following rule therein set forth:

'* * * the unexplained appearance of a horse which admittedly was owned by the defendant's minor sons and had been quartered in the barn on defendant's premises, galloping on a heavily traveled public highway in the night seems to us to be a sufficient basis for a fair inference of negligence within the scope of the rule of res ipsa loquitur.'

Instructions Nos. 10 and 16 placed before the jury only the burden of the motorist to prove negligence of the owner of the cattle without the aid of the inference of negligence arising from the presence of the cattle on the highway unattended. The jury should have been instructed additionally on the doctrine of res ipsa loquitur, for that doctrine has application in the absence of sufficient explanation of the owner's failure to keep the livestock enclosed.

Moreover, the doctrine of res ipsa loquitur had peculiar...