Eixenberger v. Belle Fourche Livestock Exchange, 9312

Citation58 N.W.2d 235,75 S.D. 1
Decision Date21 April 1953
Docket NumberNo. 9312,9312
PartiesEIXENBERGER v. BELLE FOURCHE LIVESTOCK EXCHANGE et al.
CourtSupreme Court of South Dakota

Gale B. Wyman, Belle Fourche, Percy H. Helm, Roswell Bottum, Sturgis, for appellant.

H. F. Fellows, Rapid City, Penfold & Overpeck, Belle Fourche, for respondents.

SICKEL, Judge.

This action was brought by Edward M. Eixenberger, as plaintiff, against Max Schuft, Jesse Guidinger, T. W. Thompson, Henry T. Thompson, William G. Schuft, partners doing business as the Belle Fourche Livestock Exchange, and Jesse Guidinger, personally, defendants, to recover damages for injuries received by plaintiff in an accident which occurred on U. S. Highway 212 as the result of a collision between an automobile driven by plaintiff and two horses belonging to the partnership. The jury found for plaintiff and assessed his damages at $30,000. Thereafter, defendants made a motion for judgment notwithstanding the verdict, which motion was granted, and judgment was entered for defendants. Plaintiff appealed.

The highway referred to above is a main public thoroughfare crossing the state from east to west, passing through Belle Fourche and extending in a northwesterly direction through Wyoming and to Miles City, Montana. It was constructed under the specifications of the Federal Bureau of Public Roads, with a bituminous surface. The Livestock Exchange property is located about two miles northwest of Belle Fourche and about 125 yards south of the highway. Defendants kept three horses about their premises for use in their business. When not in use the horses were confined in a pen or yard, or were permitted to be at large to graze in the unfenced area in the vicinity of the pavilion and of the highway. On December 21, 1949, between the hours of five and six a.m., plaintiff left his home in Belle Fourche and drove northwestward on this highway, on his way to work for the Larson Construction Company. At a place about one and one-half miles past the sales pavilion two of the horses came upon the highway proceeding from the north, and collided with plaintiff's automobile, damaging the car, injuring plaintiff severely and killing the horses.

Appellant contends that the verdict of the jury is supported by substantial, credible evidence, Meylink v. Minnehaha Co-op. Oil Co., 67 S.D. 187, 291 N.W. 572, and that therefore the court erred in setting aside the verdict and entering judgment for defendants notwithstanding the verdict. It is appellant's contention that the evidence is sufficient to justify the jury in finding that defendants permitted their horses to run at large unattended in the vicinity of a heavily traveled trunk highway, without fence or barrier to prevent them from straying upon the highway; that this constituted negligence and was the proximate cause of plaintiff's injury.

Negligence is merely a convenient term used to designate instances of failure to conform to standards of personal conduct. The inquiry is whether plaintiff had a right, protected against the hazard here involved by some rule of law which defendants' conduct violated. The first consideration is plaintiff's right upon the highway. He had the right to travel the highway at night at a speed of 35 miles per hour, on his own side of the road with the headlights on, as he was doing at the time, and at the place where the accident occurred. Defendants contend that plaintiff lost his right to protection against this hazard by failure to look when by looking he could have seen the horses in time to avoid the collision. On this issue the facts are undisputed. Calvin Cutschall, a witness for plaintiff, was riding to work in plaintiff's car as a passenger at the time of the accident. He testified that the horses came up suddenly and out of the ditch or borrow pit on the right hand side of the road and charged into the car. One horse hit the front end of the car and was thrown back over the hood with an awful crash, breaking the windshield. The witness further testified that the lamps of the car were lit; that he caught a glance at the horses just an instant before they collided with the car.

Plaintiff testified that he was driving along at 35 miles per hour when all of a sudden the horses came up right out of the borrow pit, just lunged right out in front of the car and struck it; that he had no time to think about stopping, but put his foot on the brakes just as the horses and car collided. The feet of one of the horses came through the windshield. These were the only eyewitnesses to the accident. In view of this testimony there is no basis for the assumption that the horses appeared in full range of plaintiff's lights or at such a distance that plaintiff could or should have seen the horses in time to avoid the accident. On the contrary it affirmatively appears from the evidence that the horses did not come within the range of plaintiff's vision until they came upon the traveled portion of the highway from the north or right side an instant before the collision and after it was too late to avoid the collision. The so-called rule of safety was inapplicable under the undisputed facts. Neither do these undisputed facts show contributory negligence on the part of the plaintiff.

Whether there is any rule of law by which plaintiff's right upon the highway, as we see it, was protected, and if so, whether such rule was violated by defendants' conduct is the decisive issue in this case. The general rule is stated in 2 Am.Jur., Animals, Sec. 60, p. 738, as follows: 'At common law an owner of a domestic animal is under no legal obligation to restrain it from being at large on the highway unattended, and he is not liable for damages for an injury resulting from its being so at large unless he has knowledge of vicious propensities of the animal or unless he should reasonably have anticipated that injury would result from its being so at large on the highway'.

There is no statute in this state making the owner liable for personal injuries which result from allowing domestic animals to run at large on the highways. Neither is it claimed that these horses had any propensities other than those which are natural or usual in horses when at large and unattended. The gist of the action is that the danger here involved should have been reasonably anticipated and that it was the duty of the defendants to protect plaintiff against it; that the failure to perform that duty was negligence.

In the case of Smith v. Whitlock, 124 W.Va. 224, 19 S.E.2d 617, 619, 140 A.L.R. 737, the circumstances and the issues presented to and decided by the court were similar to those presented on this appeal. In West Virginia as in South Dakota there was no statutory liability. The court, in its opinion, stated:

'But is there any common law or nonstatutory rule making defendant liable under the facts indicated in the declaration herein? The English common law requiring the owner of domestic animals to confine them by fences to his own premises has never been recognized in the Virginias. Many other states have followed the same rule. Ingham, Law of Animals, p. 258 et seq. The English rule was ignored because the conditions in that country out of which it arose did not exist here. In the vast, wild, forested domain which the first settlers found here, such a law would have been utterly unnecessary and wholly impracticable. The conditions which made just and reasonable the policy at first adopted in this new land were not permanent. What was safe in the beginning, later tended to become dangerous; what was once due care, might, under changed conditions, subsequently take on the character of gross negligence. The unwritten law did not change, but the basic situation to which it was being applied was continually altering, though in varying degrees, throughout the state. Some open country highways in this state have become busier than were the streets of cities in the Virginias when the original rule was adopted, while on other roads the traffic thereon remains almost primitive. Today, the owner's permitting a horse to wander on a highway may or may not be actionable negligence, depending on the character of the highway and its traffic. To let such an animal range on a great automobile boulevard, there to become involved in the confusion of incessant traffic in both directions and at great speed, in which human intelligence is often unavailing, may be the grossest of negligence; while a horse browsing along a remote, unimproved, unenclosed, little-used rural road, or mountain trail,...

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12 cases
  • Red Fox v. Hettich
    • United States
    • South Dakota Supreme Court
    • 13 Enero 1993
    ...hazard here involved if the danger should have been reasonably anticipated." (Emphasis supplied mine). Eixenberger v. Belle Fourche Livestock Exchange, 75 S.D. 1, 58 N.W.2d 235 (1953). The "hazard here involved" referred to horses running freely on the highway. In 1953, this Court did not l......
  • Atkins v. Stratmeyer
    • United States
    • South Dakota Supreme Court
    • 29 Septiembre 1999
    ...reasonably have anticipated that injury would result from its being so at large on the highway. Eixenberger v. Belle Fourche Livestock Exchange, 75 S.D. 1, 5, 58 N.W.2d 235, 237 (1953)(emphasis original); see also, Pexa v. Clark, 85 S.D. 37, 40, 176 N.W.2d 497, 499 (1970)(adopting the above......
  • Lollar v. Poe
    • United States
    • Alabama Supreme Court
    • 18 Junio 1993
    ...presented evidence that the defendants knew that their horses had run through their fences in the past); Eixenberger v. Belle Fourche Livestock Exchange, 75 S.D. 1, 58 N.W.2d 235 (1953) (reversing a j.n.o.v. in favor of the owner of horses and directing the entry of a judgment for a motoris......
  • Hodges v. Ladd
    • United States
    • Colorado Supreme Court
    • 23 Mayo 1960
  • Request a trial to view additional results

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