Green v. Biles-Coleman Lumber Co., BILES-COLEMAN

• Decision Date: 08 June 1961
• Docket Number: No. 35625,BILES-COLEMAN,35625
• Citation: 58 Wn.2d 307,362 P.2d 593
• Parties: Irvin GREEN, Appellant, v.LUMBER COMPANY, a corporation, and Jack R. Fateley, Respondents.
• Court: Washington Supreme Court

Page 307

58 Wn.2d 307

362 P.2d 593

Irvin GREEN, Appellant, v. BILES-COLEMAN LUMBER COMPANY, a corporation, and Jack R Fateley, Respondents.

No. 35625.

Supreme Court of Washington, En Banc.

June 8, 1961.

Rehearing Denied Aug. 21, 1961.

J. D. McCallum, Davenport, R. E. Mansfield, Okanogan, for appellant.

Earl K. Nansen, Omak, for respondents.

HILL, Judge.

The only assignments of error on this appeal are: that the trial court erred in concluding that the plaintiff was negligent in the manner in which he was driving fifty-nine head of cattle along to highway; and, that the trial court erred in concluding that the plaintiff's negligence, if any, was a proximate cause for the killing of five and the injuring of five of his cattle.

The trial court's findings of evidentiary facts are admitted; the appellant urges only that the facts, as found, do not establish the ultimate conclusion of contributory negligence.

There was formerly a statute which gave cattle the right-of-way upon the highways of this state. This statute was repealed in 1937. The only statute which now deals with cattle on highways is R.C.W. 16.24.070, which is limited in its application to 'stock restricted areas.' This statute was discussed recently in Burback v. Bucher, Wash.1960, 355 P.2d 981, 984. We are here concerned with an unrestricted area, or range country, where cattle may run at large. And, although, as we said in Burback v. Bucher, supra, 'The owners of cattle have a fundamental and historic right to the use of the highways,' this right does not excuse the owner of cattle (being driven on the highway) from the obligation of due care. Frowd v. Marchbank, 1929, 154 Wash. 634, 283 P. 467. The question here is whether we can say, as a matter of law, that the plaintiff used reasonable care to protect his cattle from injury, while exercising his right to drive them on the highways, and, hence, was not contributorily negligent.

The defendants, a logging-truck driver and his employer, were concededly negligent because the driver was hurtling his thirty-ton juggernaut at a speed of thirty-five miles an hour down a grade on a road that was slushy and slippery, knowing that cattle might be on the road.

We must, however, agree that the trial court was entitled to conclude that for the plaintiff to attempt to move fifty-nine head of cattle for a 'mile and a half or three quarters' along a curving highway, which he knew was frequently used by logging trucks, without any assistance (when another man was available to help him), constituted contributory negligence.

The trial court also concluded that a warning should have been given to approaching motorists. It is conceded that the plaintiff was not legally obligated to give advance warning of the herd's approach; the question is: Would a reasonable man, under the circumstances, have sent his employee (who was driving a truck) up the road a quarter or half a mile ahead of the herd to give approaching motorists, coming down the grade, warning that the cattle were on the highway?

The trial court was, further, entitled to conclude that the plaintiff was contributorily negligent in that, with his herd strung out along the highway for three hundred and twenty-five feet, he permitted some of the cattle at the rear of the herd, and just ahead of him, to cover all of the traveled-portion of the highway; and in that he made no attempt to break up this group of cattle nor to get them off of the highway when he became aware of the approach of the logging truck.

It is to be noted that the plaintiff could hear the truck coming 'for a long ways' before he could see it, and he knew it was traveling 'faster than it should be coming.' The plaintiff first saw the truck some two hundred feet before it came abreast of any of the cattle, which were stretched out along the south side of the highway, or in the east-bound traffic lane, for a distance of three hundred and twenty-five feet ahead of the group of cattle at the rear of the herd with which the truck ultimately collided. Despite the fact that the plaintiff saw its approach for five hundred and twenty-five feet before the collision and heard it coming 'for a long ways' before he could see it he made no attempt to clear the road but 'got out of the way with the horse as far off' as he could get.

There is no dispute in the evidence. The appellate function is solely to determine whether the trier of the facts was entitled to draw the inference of contributory negligence therefrom. It is not our function to 'second guess' the trial court, if there was a permissible inference of contributory negligence from the evidence. We are satisfied that the trial court could conclude from the evidence that there was contributory negligence on the part of the plaintiff.

The judgment of dismissal is affirmed.

FINLEY, C. J., and MALLERY, DONWORTH and ROSELLINI, JJ., concur.

FOSTER, Judge (dissenting).

In appellant's action for the destruction of a number of his cattle by the respondent company's loaded logging rig, the court decides that the appellant's contributory negligence is a bar. I cannot agree for three reasons:

(1) There is no duty on the part of one driving cattle along the highway to warn in advance of the herd's...