Grubb v. Wolfe

• Decision Date: 13 December 1965
• Docket Number: No. 7728,7728
• Citation: 1965 NMSC 153,408 P.2d 756,75 N.M. 601
• Parties: Earl GRUBB, Plaintiff-Appellant, v. Donald Eugene WOLFE, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 756

408 P.2d 756

75 N.M. 601

Earl GRUBB, Plaintiff-Appellant, v. Donald Eugene WOLFE, Defendant-Appellee.

No. 7728.

Supreme Court of New Mexico.

Dec. 13, 1965.

Robertson & Reynolds, Silver City, for appellant.

LaFel E. Oman, Garnett R. Burks, Jr., Las Cruces, for appellee.

MOISE, Justice.

Plaintiff-appellant appeals from a judgment denying him damages because of the loss of a bull calf which occurred when the calf was struck and killed by an automobile driven by defendant-appellee.

It appears that State Highway 90, between Lordsburg and Silver City passes through a portion of the Gila National Forest. The highway is black-topped and unfenced. On September 20, 1963, at about 4:30 p. m., defendant, accompanied by three companions, was traveling in a northerly direction along said highway. About sixtenths of a mile after passing a highway sign stating 'Stock on Highway' the car of defendant struck the bull calf as it was crossing the highway. At the point of the accident, the road was built on a fill with rather steep slopes into the borrow ditch on either side of the black top and there was a considerable growth of vegetation and weeds at the side of the road. It was defendant's testimony that the calf ran suddenly onto the highway in front of his car at a point so close to him that it was impossible to avoid striking the animal. At the time, defendant states he was driving at a speed of 60 to 65 miles per hour. The speed limit was 70 miles per hour. Upon striking the calf, defendant's car left the highway and came to rest in a canyon to the side of the highway. The car was seriously damaged.

Plaintiff, owner of the calf, had a forest grazing permit for livestock in the area where the calf was killed, and had run cattle there for some five years during which period he had lost six or seven other animals by having them struck by automobiles.

Trial was had to a jury which returned a verdict for defendant. Plaintiff relies on four points, all of which are addressed to claimed errors of the court in the instructions. given and refused.

Plaintiff, in Point I, directs attention to the fact that defendant knew the highway, knew that cattle grazed in the area and crossed back and forth across the road, had seen the sign 'Stock on Highway,' and saw the animal that he struck some distance before the collision, but drove in such a manner as to strike and kill it. It is plaintiff's position that negligence is thereby established and that an instruction on unavoidable accident was not proper. He relies entirely on Horrocks v. Rounds, 70 N. M. 73, 370 P.2d 799. We do not see anything in that holding which supports his position. The evidence to which he points might have established negligence but, on the other hand, it might have been determined that it did not, and that defendant was free from negligence. If so, and if plaintiff likewise was not negligent as he asserts, the instruction would be proper. Stambaugh v. Hayes, 44 N.M. 443, 103 P.2d 640. The proper test is whether there is any evidence from which the jury could possibly conclude that the accident occurred without the negligence of anyone being the proximate cause. Zamora v. Smalley, 68 N.M. 45, 358 P.2d 362. For other cases on the subject, in addition to those cited above, see Baros v. Kazmierczwk, 68 N.M. 421, 362 P.2d 798; Lucero v. Torres, 67 N.M. 10, 350 P.2d 1028. See, also, Shelton v. Rudd (Mo.App.1922) 242 S.W. 151; Rivers v. Pierce, 106 Colo. 236, 103 P.2d 690; Pickett v. Travelers Ins. Co. (La.App.1961) 127 So.2d 547.

The remaining points advanced by plaintiff for reversal are directed at the instructions given and the refusal of tendered instructions. The issue involved is the duty, if any, owed by plaintiff to protect his cattle from injury. Stated otherwise, did the court err in submitting an issue of contributory negligence to the jury?

It is plaintiff's position that he had a permit to run his cattle on the forest lands which he describes as 'open range.' We assume that by this he means there were no fences between the grazing area and the highway and no law requiring any. He points to legislation providing for creation of herd law districts (Secs. 47-13-1 through 47-13-12, N.M.S.A.1953) and concludes that since the forest area was not in a herd law district, he had no duty to protect his cattle from injury or death on the highway. We do not agree. Although the herd law district legislation places certain responsibilities upon owners of livestock in herd law districts, and by Sec. 47-13-11, N.M.S.A. 1953, makes it a misdemeanor to permit livestock to run at large on a public road in a herd law district, we do not think it follows that no duty exists concerning protection of livestock absent such a district. Rather, we understand the law to require an owner of livestock to use care to protect his property from injury.

New Mexico, as part of the western United States, has always been principally a rural area where most of the land is devoted to the raising of livestock. It is not surprising therefore that at an early date, this court announced that in this state, as in most of the other western states, the rule requiring the owner of domestic animals to confine them on his own grounds or be liable for their trespass on the unenclosed lands of his neighbors, was not recognized. Rather, it was held that the owner of livestock could permit his animals, when not dangerous, to run at large without responsibility for their getting on the property of his neighbor. Hill v. Winkler, 21 N.M. 5, 151 P. 1014. This accorded with the holding of our Territorial Supreme Court in Pecos Val. & N. E. Railway Company v. Cazier, 13 N.M. 131, 79 P. 714, and Sears v. Fewson, 15 N.M. 132, 103 P. 268.

Later in Carnes v. Withers, 38 N.M. 441, 34 P.2d 1092, it was decided that, except in herd law districts, an owner of livestock is under no obligation to fence to prevent his cattle from trespassing, and the owner is not liable for damage done by his trespassing animals if it is not shown that the trespass was willful.

What we must here determine is whether the early day 'open range' rule which relieved an owner of livestock from any duty to keep his animals off a public highway still prevails. Herd district laws constitute an encroachment on the unrestricted right of an owner to let his stock run at large. We have had such a law since 1909. Scarborough v. Wooten, 23 N.M. 616, 170 P. 743. Does the unrestricted right remain otherwise unlimited? We think not. Time and progress have forged the change. While we are still primarily a livestock raising state, our ranches are now criss-crossed with highways carrying many cars and many people at high speeds. Considerations of public health and safety demand that no different rule apply when an owner permits his livestock to cross and recross a busy road from that which applies if he himself were crossing and re-crossing on horseback or in a wagon or automobile. In either event, his conduct must be that of a reasonable and prudent person. That this is true was recognized in the case of Galeppi Bros., Inc. v. Bartlett (C.A.9, 1941) 120 F.2d 208, which arose in California. In the later case of Jackson v. Hardy, 70 Cal.App.2d 6, 160 P.2d 161, the rule was recognized. We quote from that case (160 P.2d 165):

'That the judgment can rest solely upon the proof offered in support of the general allegation of negligence appears from the decision in Galeppi Bros v. Bartlett, 9 Cir., 1941, 120 F.2d 208. That was a case involving a collision between an automobile and a cow on a California highway. The cattle owners argued that since the accident occurred on an unfenced highway they were under no duty to keep their cattle off the highway because the common law made no such requirement, that such law had not been changed in California and until changed by the legislature no duty could be found. To that argument the court replied (120 F.2d at page 210); 'The common-law rule was...