Jensen v. Nielson

• Decision Date: 26 June 1975
• Docket Number: No. 7554,7554
• Citation: 91 Nev. 412,537 P.2d 321
• Parties: Melburn JENSEN, Appellant, v. Kevin NIELSON 1 et al., Respondents.
• Court: Nevada Supreme Court

Page 321

537 P.2d 321

91 Nev. 412

Melburn JENSEN, Appellant, v. Kevin NIELSON ¹ et al., Respondents No. 7554.

Supreme Court of Nevada.

June 26, 1975.

Beckley, DeLanoy & Jemison and Richard W. Myers, Las Vegas, for appellant.

Fadgen & Johnson, Las Vegas, for respondents.

OPINION

BATJER, Justice:

Reciprocal actions in negligence were filed by the parties on appeal after appellant's cattle were struck and killed during the evening of November 5, 1971, by an automobile driven by respondent Kevin Nielson on a state highway in a fenced area. The actions were consolidated and after a trial, without a jury, judgment was entered in favor of respondents in case No. A 103398 (Jensen v. Nielson). In case No. A 111027 (Safeco Insurance Co. of America v. Jensen) judgment was also entered in favor of respondents requiring appellant to pay for the damages to respondents' automobile as well as reasonable attorneys fees and costs.

Appellant's attempt to challenge the order denying his motion to amend findings of fact, conclusions of law and judgments must fail because such an order is not appealable within NRAP 3A, formerly NRCP 72(b). Casino Operations, Inc. v. Graham, 86 Nev. 764, 476 P.2d 953 (1970).

Appellant contends that the trial court's finding that he was negligent is not supported by sufficient evidence. 'Where a trial court, sitting without a jury, has made a determination upon the basis of conflicting evidence, that determination should not be disturbed on appeal if it is supported by substantial evidence.' Fletcher v. Fletcher, 89 Nev. 540, 542, 516 P.2d 103, 104 (1973). It is our opinion that the district court's determination is not supported by substantial evidence.

The record reveals that (1) appellant owned the cattle involved in the accident; (2) a gate in the highway fence on land adjoining appellant's was found open shortly after the accident occurred; (3) the gate had often been left open in the past and was not under appellant's ownership or control, but rather was available for general ingress and egress on a public road; (4) appellant had transported the cattle to an open range approximately ten miles beyond the gate a day or two before the accident; and (5) the fences and gates surrounding appellant's land were found to be secure shortly after the accident.

A number of cases have been decided in other jurisdictions where animals escaped through open gates from farmland onto a fenced highway right-of-way and were struck by vehicles causing damage to motorists. See cases collected in 34 A.L.R.2d 1285 and Later Case Service; see also cases collected in 59 A.L.R.2d 1328 and Later Case Service. Cf. State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972). This appears to be the first case to be decided where animals were struck after having returned from open range land through an open gate in a fence not located on the land of the owner of the cattle, at an intersection between a public road and a fenced state highway.

The pertinent Nevada statute, NRS 568.360, ² does not impose absolute liability upon an owner of a domestic animal for damage resulting from its intrusion upon a highway in a fenced area. Liability for damages caused by a collision between a motor vehicle and a domestic animal which has entered such highway will be imposed upon a defendant only if the plaintiff can prove that the defendant has negligently allowed such animal to enter. The fact that the appellant's cattle had entered upon the highway does not justify an inference that appellant negligently allowed them to be there. Cf. Steed v. Roundy, 342 F.2d 159 (10th Cir. 1965); Lee v. Hinson, 160 So.2d 166 (Fla.Dist.Ct.App.1964); Parker v. Reter, 234 Or. 544, 383 P.2d 93 (1963); Gordon v. Sutherland, 131 So.2d 520 (Fla.Dist.Ct.App.1961); Pepper v. Bishop, 194 Cal.App.2d 731, 15 Cal.Rptr. 346 (1961).

No evidence tending to show that appellant negligently allowed the cattle to enter the fenced highway can be gleaned from the record. NRS 568.360(3) does not contemplate a case such as this where domestic animals are allowed to enter upon a right-of-way through the acts of an unknown third person or persons using a public road and leaving a gate open. ³ Although appellant had on past occasions closed the gate when he found it open, he was unable, because of the public road, to secure it with a lock or to place a 'no trespassing' sign upon it. Furthermore, he could not be expected to guard it constantly. 'The accident was due to a combination of circumstaces beyond the reasonable forseeability or control of the defendant and for which he should not be held responsible.' Steed, supra, at 161; Gardner v. Black, 217 N.C. 573, 9 S.Ed.2d 10 (1940).

The lower court's finding that respondent Kevin Nielson was not negligent is also...