Hansen v. Kemmish

• Decision Date: 09 April 1926
• Docket Number: 36876
• Citation: 208 N.W. 277,201 Iowa 1008
• Parties: HERMAN HANSEN, Appellant, v. HARRY KEMMISH, Appellee
• Court: Iowa Supreme Court

208 N.W. 277

201 Iowa 1008

HERMAN HANSEN, Appellant, v. HARRY KEMMISH, Appellee

No. 36876

Supreme Court of Iowa, Des Moines

April 9, 1926

Appeal from Harrison District Court.--O. D. WHEELER, Judge.

THE plaintiff was injured as the result of a collision between his automobile and defendant's boar, which was running at large on the highway, and brings this action for his resulting damage. The court directed a verdict in favor of the defendant, and the plaintiff appeals.

Reversed.

Bolter & Murray, for appellant.

Robertson & Havens, for appellee.

MORLING J. DE GRAFF, C. J., and EVANS, STEVENS, FAVILLE, VERMILION and ALBERT, JJ., concur.

OPINION

MORLING, J.

The thought of the court in directing the verdict seems to have been that the plaintiff, at the speed he was going, was himself negligent, because his car was not equipped with proper lights. The plaintiff was driving a Ford car eastwardly at about 7:30 P. M., October 18, 1921. It was starlight, and he had his lights on. He testified:

"I didn't see the hog until the minute I struck it. The hog must have been on the north side of the road. I was watching the road ahead of my car, and all at once the hog stood in front of my place, and I could neither stop nor turn, and I ran into him, and the car was thrown to the left, and upset. * * * On the north side of the road there was a ditch, and some weeds at the side of the ditch,--tall weeds,--sweet clover and some other weeds. There was only one traveled track in this road. This beaten track was towards the north side. My car was traveling in this beaten track. * * * My lights threw a light straight ahead. I saw the head and front shoulders of the hog first. It was facing south. I couldn't tell whether it was moving or not. I thought he was standing perfectly still. I had no time to turn out or stop the car between the time I first saw the hog and the time I struck him. * * * I judge the hog weighed between 350 and 400--a dark red male hog. * * * The lights were good. Q. And you say they were in excellent condition, and giving an excellent light ahead of you, as you went to the place where the accident occurred? A. Yes, sir. The place was about level where we struck the hog. The beaten track of the road was in good condition. There were weeds at the side of the road,--sweet clover and other weeds, anyway two and a half feet high, and other weeds, anyway three feet high. * * * I was looking ahead of my car, watching the road. * * * My seat was on the north side. * * * Q. Isn't it the fact that the lights on your car were in bad condition at that time? A. No. Q. Were not the brakes of the car in bad condition? A. No, sir. * * * Q. You could see ahead of the car just how far before the collision? A. I don't know--as far as any ordinary car. Q. Well, how many feet ahead of the car could you see in this traveled track in the road? A. About ten or twelve feet, I should judge. Q. Couldn't you see farther than 12 feet ahead of your car in the road at that time, with the lights? A. It depends on which condition your car sets. Q. In the level road that you have described, at the place of the collision, couldn't you see, with the lights of your car, more than 12 feet ahead of the car? A. I don't think so."

A witness riding with the plaintiff testified:

"I just saw the hog, and I thinks, 'We are going to hit that hog;' and I didn't have time to say anything, and we hit it. We were traveling around 25 miles per hour at the time. * * * We could see the beaten track. To the north of the beaten track there was a ditch, and it looked to me as though there were some weeds hanging over the ditch. When I first saw the hog, it was coming out of the ditch at the north side of the road, moving south. * * * I was sitting on the south of him, looking off towards the northwest [northeast?] * * * The ditch * * * was probably two feet lower than where it was graded up where we were with the car. I can't say how far we were from the ditch. The hog walked 6 or 8 feet south before the car struck it. I saw the hog from the time it started to come out of the ditch. I saw it when it was back in the ditch. There were no weeds right on the road, to obstruct my view. * * * You didn't say a word? A. I didn't have time. * * * I wouldn't swear we were not going 26 or 27 miles an hour, but I would swear that we were not going over 30 miles an hour. * * * I don't know just how far I could see ahead of the car before we hit it,--I think I could see more than 10 or 12 feet ahead of the car. * * * I would judge, 25 or 30 feet ahead. Q. The lights were not bright on your car at that time, were they? A. They were as bright as most of them."

One of the defendant's witnesses testified that the light was variable, and the globe not large enough. He said:

"The lights on this car, when you are running steadily at the rate of 25 miles per hour, would give a good light sometimes."

I. The court ruled that the presence of the boar on the highway made out a prima-facie case of negligence, but admitted evidence offered by defendant to show the exercise of care in confining the animal. The appellant argues that, under Sections 2312 and 2313, Code of 1897, defendant was required to restrain the boar, at his peril. It has been said that our decisions on the question whether the violation of a statutory duty is negligence per se are not in harmony. We will not undertake the task of discussing them at length, nor the impossible one of formulating a rule for the determination of all questions of this character. It may properly be said, we think, that, if a statute lays down a rule or regulation of conduct specifically designed for the safety and protection of persons or property, injuries proximately resulting from its violation to one who, under the circumstances of the case, is within its purview, and free from contributory negligence, would be actionable, as for negligence per se. Such a violation of a positive statutory enactment need not involve the element of willfulness. It is of itself negligence. Reynolds v. Hindman, 32 Iowa 146; Lonergan v. Illinois Cent. R. Co., 87 Iowa 755; Messenger v. Pate, 42 Iowa 443; Burk v. Creamery Pack. Mfg. Co., 126 Iowa 730, 102 N.W. 793; Ives v. Welden, 114 Iowa 476, 87 N.W. 408; Faatz v. Sullivan, 199 Iowa 875, 200 N.W. 321; Payne v. C., R. I. & P. R. Co., 44 Iowa 236; Correll v. B., C. R. & M. R. Co., 38 Iowa 120; Tobey v. Burlington, C. R. & N. R. Co., 94 Iowa 256, 62 N.W. 761; Sala v. Chicago, R. I. & P. R. Co., 85 Iowa 678, 52 N.W. 664; Reed v. Chicago, St. P., M. & O. R. Co., 74 Iowa 188, 37 N.W. 149; Girl v. United States R. Adm., 194 Iowa 1382, 189 N.W. 834; Faatz v. Sullivan, 199 Iowa 875, 200 N.W. 321; Conn v. May, 36 Iowa 241; Thoburn v. Campbell, 80 Iowa 338, 45 N.W. 769.

Cases of another class are illustrated by those holding that the violation of statutory or municipal regulations constituting "the law of the road" is prima facie, but not conclusively negligence. McElhinney v. Knittle, 199 Iowa 278, 201 N.W. 586; Smith v. Town of Hudson, 202 Iowa 300, 207 N.W. 340; Carlson v. Meusberger, 200 Iowa 65, 204 N.W. 432; Herdman v. Zwart, 167 Iowa 500, 149 N.W. 631. Generally speaking, the harm for which the action is brought must be of the kind which the statute was intended to prevent; and the person injured, in order to recover, must be within the class which it was intended to protect. Pollock on The Law of Torts (12th Ed.) 197; Cohoon v. Chicago, B. & Q. R. Co., 90 Iowa 169, 57 N.W. 727; Martin v. Chicago, R. I. & P. R. Co., 118 Iowa 148, 91 N.W. 1034; Lonergan v. Illinois Cent. R. Co., 87 Iowa 755. But even though the injury complained of is not within the purview of the statute, the disregard of statutory duty may be a material fact, and evidence of negligence. Union Pac. R. Co. v. McDonald, 152 U.S. 262, 283, 38 L.Ed. 434, 14 S.Ct. 619; Pollock on The Law of Torts (12th Ed.) 197; Georgia Railroad v. Williams, 74 Ga. 723, quoted in Lonergan v. Illinois Cent. R. Co., 87 Iowa 755, 760.

A general statutory duty is ordinarily for the benefit of all persons who are likely to be exposed to injury from its nonobservance. Lonergan v. Illinois Cent. R. Co., 87 Iowa 755; Martin v. Chicago, R. I. & P. R. Co., 118 Iowa 148, 91 N.W. 1034; Camp v. Chicago, G. W. R. Co., 124 Iowa 238, 99 N.W. 735; Girl v. United States R. Adm., 194 Iowa 1382, 189 N.W. 834.

The first inquiry is necessarily into the meaning and purpose of the statute. The language of that under consideration (Section 2312, Code of 1897) is:

"The owner of any * * * boar * * * shall restrain the same, and any person may take possession of any such animal running at large * * *"

In ascertaining the meaning of this statute, we should consider analogous and connected statutes. Section 2314 declares:

"Swine, sheep and goats at all times * * * shall be restrained from running at large. Animals thus prohibited from running at large, when trespassing on land, or a road adjoining thereto, may be distrained by the owner of such land, and held for damages done by them, * * *"

This section also declares:

"During the time and as required by a police regulation adopted according to law, stock shall be restrained from running at large."

The present statute provides:

"All animals shall be restrained by the owners thereof from running at large." Section 2980, Code of 1924.

Also:

"Animals which are unlawfully running at large on the highway may be distrained by the owner of the adjoining land * * *" Section 2984, Code of 1924.

Section 2313, Code of 1897, provided:

"Any animal trespassing upon land fenced as provided by law may be distrained * * * unless it escaped from adjoining land in consequence of the neglect of such landowner to maintain his part of a lawful...