Hennenfent v. Flath

• Decision Date: 30 October 1954
• Docket Number: No. 7405,7405
• Parties: C. E. HENNENFENT, Plaintiff and Appellant, v. Emanuel FLATH, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 533

66 N.W.2d 533

C. E. HENNENFENT, Plaintiff and Appellant, v. Emanuel FLATH, Defendant and Respondent.

No. 7405.

Supreme Court of North Dakota.

Oct. 30, 1954.

Syllabus by the Court.

1. Questions of negligence and contributory negligence are questions of fact for the jury unless the evidence in the case is such that reasonable men can draw but one conclusion therefrom.

2. A party who seeks a recovery under the provisions of a statute must be within the class the statute was enacted to protect.

3. In an action for damages arising out of a collision between a motor vehicle and a domestic animal at large upon a public highway, the plaintiff's rights and the defendant's duties are to be measured by the rule of due care.

4. Whether defendant, whose cattle were at large upon a public highway, exercised reasonable care to confine them, held to be a question of fact for the jury.

5. Whether plaintiff, who passed an approaching car, beyond which he could not see because of glaring headlights, at a speed of 45 or 50 miles an hour and thereafter collided with an animal which entered the highway from behind the approaching car, was guilty of contributory negligence, held a question of fact for the jury.

6. An instruction as to the statutory requirements for headlights on motor vehicles without an instruction upon the statutory requirements for passing lights, is held, for the reasons stated in the opinion to be without prejudice.

7. Where the court in defining proximate cause to the jury, differentiates it from remote cause, the instruction is not erroneous even though there is no evidence of an intervening cause in the case.

8. Remarks by the trial court in connection with a ruling upon an objection to the reception of evidence which do not constitute a comment upon the credibility or weight to be given to evidence, but merely state what the record shows as to certain matters, are not error if the statements of the court are accurate.

Ella Van Berkom, Minot, for appellant.

Robt. Vogel, Garrison, for respondent.

BURKE, Judge.

This action arose out of a collision between a motor vehicle driven by the plaintiff and an animal owned by the defendant. The collision occurred upon a public highway. In his complaint the plaintiff alleged that defendant, negligently, and in violation of the laws of the State of North Dakota, permitted cattle owned by him to run at large and that such negligence proximately caused injury and damage to the plaintiff's automobile in the sum of $549.92. He asked for judgment in that amount. Defendant answered denying any negligence on his part, alleging contributory negligence on the part of the plaintiff and counterclaiming for the value of the animal struck and killed by plaintiff's car. The issues in the case were tried to a jury and a verdict was returned for a dismissal of the action. Thereafter plaintiff moved for a new trial. This motion was denied and plaintiff has appealed from the order denying the motion.

There are five specifications of error. We shall first consider the specification that the verdict and judgment are contrary to the evidence. Upon this specification plaintiff's contention is that both defendant's negligence and lack of contributory negligence on the part of the plaintiff were established by the evidence as a matter of law.

The collision occurred upon Highway 83 at about 8:30 P.M. on the 8th of April at a point about a mile to a mile and a half south of Coleharbor. In this vicinity the course of the highway is parallel to the right of way of the Soo Railway and runs generally from northwest to southeast. The right of way is southwest of the highway. Defendant's land abuts the railroad right of way on the southwest and is separated from it by a right of way fence. In order to reach his land from Highway 83, it was necessary for defendant to cross the railroad right of way. In the winter preceding the collision defendant's customary way of entry across the tracks had been blocked by snow and he had secured permission from the railway company to use an emergency crossing at a point where there was a wooden gate in the right of way fence. Defendant removed this wooden gate. He said he replaced it with a wire gate which he kept closed. On the other hand Melvin Thorson, the section foreman in charge of right of way maintenance, stated that he never saw the wire gate and that there was no wire gate at the time he replaced the wooden gate after defendant's regular entry across the tracks was reopened.

Immediately prior to the collision plaintiff was traveling upon the highway in a southeasterly direction at a speed, according to his testimony, of 45 or 50 miles per hour. It was dark and the bright lights of the car were lighted. His testimony is that a car approached from the opposite direction with glaring headlights which made it impossible for him to see beyond it, that he dimmed his headlights and diminished his speed as the two cars neared each other, that just as the other car passed he saw two animals coming across the road from his left, 'from behind the other car'. He missed the first animal but struck the second one which he said was only 30 to 40 feet away from him when he first saw it. He said, 'I didn't have an opportunity to avoid hitting it and I was afraid I would turn the car over so I killed the car down and let it slide right along. There was a fellow behind me and I was afraid he might hit me.' The skid marks left by plaintiff's car on the highway were 116 feet long and plaintiff estimated that his car traveled about 80 feet after striking the animal. None of the persons riding in plaintiff's car were injured. There is no question but that the animals belonged to the defendant.

It was plaintiff's theory that the cattle left defendant's pasture by way of the gate in the right of way fence. Defendant, however, testified that the tracks of the animals in the snow showed where they went through the fence. This fence was woven wire at the bottom, topped by three strands of barbed wire. Defendant said that at the place where the animals' tracks were, the woven wire had sagged and the barbed wire was loose. It was his theory that the cattle had 'crawled' through the fence in the space between the woven wire and the first strand of barbed wire. He said that 12 animals had got out of the pasture, while plaintiff said there were 15 to 20 out on the highway. Defendant stated that he had not inspected the fence prior to this occasion. He said, 'It was early in the spring yet and I never went around to fix the fences.'

Upon this record are negligence on the part of the defendant and absence of contributory negligence on the part of the plaintiff established as a matter of law? We think not. Questions of negligence and contributory negligence are questions of fact for the jury unless the evidence is such that reasonable men can draw but one conclusion therefrom. Amstrong v. McDonald, 72 N.D. 28, 4 N.W.2d 191; Fagerlund v. Jensen, 74 N.D. 766, 24 N.W.2d 816; Pachl v. Officer, N.D., 54 N.W.2d 883.

Plaintiff asserts that defendant's negligence arises out of a breach of a statutory duty. Section 36-1101, NDRC 1943, provides: 'No cattle, horses, mules, swine, goats, or sheep shall be permitted to run at large' except under certain conditions which do not exist in this case. Section 36-1107, NDRC 1943, provides: 'The owner or possessor of * * * cattle which shall inflict any damage to the crops or other property of another * * * shall be liable to the person sustaining the injuries or to the owner of the lands for all damages suffered by him * * *.' These sections are part of the 'Herd Law' as it appears in the 1895 Code. From the time at which this law was enacted, and the provisions of the act generally, we are satisfied that its purpose was to protect the state's chief industries, cattle raising and agriculture. It is a general rule that a party seeking to recover damages under such an act must be within the class the statute was enacted to protect. Hansen v. Kemmish, 201 Iowa 1008, 208 N.W. 277, 45 A.L.R. 498; Fox v. Koehnig, 190 Wis. 528, 209 N.W. 708, 49 A.L.R. 903; Sidle v. Baker, 52 Ohio App. 89, 3 N.E.2d 537; Champlin Refining Co. v. Cooper, 184 Okl. 153, 86 P.2d 61. A traveler upon a highway therefore has no cause of action by virtue of the 'Herd Law' but his rights and the defendant's duties are to be measured by the rule of due care. Hansen v. Kemmish, supra; Fox v. Koehnig, supra; Texeira v. Sundquist, 288 Mass. 93, 192 N.E. 611.

The question then is: Did defendant exercise ordinary care to prevent his cattle from running at large? There is proof that there was a weak...