Leaders v. Dreher

• Citation: 169 N.W.2d 570
• Decision Date: 24 July 1969
• Docket Number: No. 53553,53553
• Parties: Vernon LEADERS, Appellee, v. Fred DREHER, Appellant.
• Court: United States State Supreme Court of Iowa

Page 570

169 N.W.2d 570

Vernon LEADERS, Appellee, v. Fred DREHER, Appellant.

No. 53553.

Supreme Court of Iowa.

July 24, 1969.

Smith, Peterson, Beckman, Willson & Peterson, by Philip J. Willson and Robert J. Laubenthal, Council Bluffs, for appellant.

Noran L. Davis and John P. Churchman, Council Bluffs, for appellee.

RAWLINGS, Justice.

In negligence action for damages sustained when defendant's trespassing sow struck and injured plaintiff, trial to jury resulted in a verdict of $13,350 for plaintiff. Upon denial of defendant's motion for a new trial he appeals. We affirm.

Briefly stated the evidence discloses these two parties live on adjoining farms, having been neighbors since 1946.

Among other farming operations defendant raises Wessex Saddleback hogs. One of these animals, a 450 to 475 pound sow, repeatedly escaped from its fenced enclosure and went onto plaintiff's property. Plaintiff's witnesses testified defendant's hog had been found on plaintiff's premises each day for about four to six weeks before the incident in question. On these prior occasions plaintiff or the members of his family, often chased the pig away. Other times they would call defendant and request he remove it. But the record discloses defendant usually arrived half an hour to an hour after notification, during which time the animal continued damaging plaintiff's property.

The hog was seen by plaintiff on his premises August 20, 1965, 'up by the brooder house eating feed and upsetting the water and feed stuff', also 'in the brooder house scaring the chickens.' He then unsuccessfully attempted to remove the unwanted invader. Failing this, he summoned his wife and children to help. The children, with assistance of the family dog, began chasing the swine toward a white gravel lane leading to a country road. In the meantime, plaintiff stationed himself on the lane between the brooder house and hog pen in order to head the sow down the road toward defendant's farm. With children and dog in pursuit the animal approached the gravel lane where plaintiff was standing. At this point the unfortunate injury occurred. The sow ran under plaintiff, catching his right leg and upsetting him. He landed on his head and shoulders, causing a herniated cervical disc at the interspace between the fourth and fifth cervical vertebrae. A spinal fusion was performed and the attending physician testified plaintiff suffered an injury connected partial permanent physical disability of 10--15 percent. He was unable to do farm work for three months after the operation.

There is evidence to the effect defendant's fence was not in good condition, a hole having been discovered in it after plaintiff's injury, through which livestock had apparently been escaping.

Errors here generally assigned by defendant are, trial court erred in overruling his timely motions for a directed verdict, judgment notwithstanding the verdict, and a new trial.

Specific divisional arguments in support of these assignments will not necessarily be considered in the order presented.

I. This being a law action it is not reviewable de novo, but rather on errors properly assigned and argued. Neither is it for us to weigh the evidence or pass on credibility of the witnesses. And in considering defendant's claim to the effect he was entitled to a directed verdict, all evidence is viewed in that light most favorable to plaintiff. Rule 344(f)(1), (2), Rules of Civil Procedure.

II. Defendant argues plaintiff failed to show any violation of duty as alleged in his petition.

The negligence alleged in plaintiff's petition and submitted to the jury was, defendant failed to restrain his sow from running at large.

Section 188.2, Code of Iowa (1966) requires that: 'All animals shall be restrained by the owners thereof from running at large.'

In dealing with that statute we have said, proof that animals are running at large is prima facie evidence of negligence, not negligence per se, and may be rebutted by evidence of reasonable and ordinary care under the circumstances. See Klunenberg v. Rottinghaus, 256 Iowa 731, 735, 129 N.W.2d 68; Ritchie v. Schaefer, 254 Iowa 1107, 1113, 120 N.W.2d 444; Hansen v. Kemmish, 201 Iowa 1008, 208 N.W. 277, 45 A.L.R. 498; and Annos. 34 A.L.R.2d 1285, 1286.

Here uncontroverted evidence discloses defendant's unattended sow was trespassing on plaintiff's property. Under the authorities cited, supra, prima facie negligence was established by plaintiff, thereby generating a jury question on the asserted negligence issue.

III. With regard to the same subject defendant contends, trial court erred in giving instruction 5 as to the legally permissible finding attendant upon defendant's failure to effectively restrain his animal.

That instruction, in pertinent part, states: '* * * in this case the fact that the animal of the defendant was on the property of the plaintiff is sufficient to permit you to infer or assume that the defendant was negligent in failing to restrain said animal. However, this inference or assumption is not absolute or conclusive, and the defendant is entitled to show, if he is able to do so, that he exercised reasonable care and prudence in restraining said animal.'

Defendant claims trial court, by use of the words infer, assume, inference and assumption, did not properly instruct the jury relative to 'prima facie' evidence of negligence. It is argued the most the jury should have been told was that the facts shown created a permissible presumption of negligence, and the instruction given tells the jury, defendant was negligent per se in allowing the swine to run at large. We do not agree.

Actually the authorities cited by defendant lend little or no support to his position. He quotes the definition of 'inference' in Black's Law Dictionary. The Rev. Fourth Ed., pages 917--918, states in part: 'A 'presumption' and an 'inference' are not the same thing, a presumption being a deduction which the law requires a trier of facts to make, an inference being a deduction which the trier may or may not make, according to his own conclusions; * * *'. But see State v. Ramsdell, 242 Iowa 62, 68, 45 N.W.2d 503.

Black's Law Dictionary, supra, at page 917, also says 'inference' denotes: 'A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted.' In this regard see also Naxera v. Wathan, Iowa, 159 N.W.2d 513, 522.

And 43 C.J.S., page 373, discloses 'infer' is: 'Derived from the Latin inferre, compounded of 'in' from, and 'ferre' to carry or bring, and defined as meaning to bring into, to bring forward; to bring a result or conclusion from something back of it, that is, from some evidence or data from which it may be logically deduced.'

Additionally Webster's Third New International Dictionary, Unabridged, 1961, says 'assume' means: '* * * to take as an assumption or premise in logic.'

By no stretch of imagination can it be said the challenged terminology in instruction 5 is conclusive or mandatory in nature. In fact an examination of that instruction reveals the jury was told, any permissible inference or assumption was rebuttable, not conclusive.

Probably, as defendant states, the real question is, what did the words used mean to the jury?

Dealing with a requested instruction defining the terms inference and presumption, this court said in State v. Jiles, 258 Iowa 1324, 1338, 142 N.W.2d 451, 459, 460: 'Admittedly words, terms or phrases may be employed in the instructions given to a jury which are so uncommon and unfamiliar to the average person as to require some explanation, clarification or definition.

'The court, in the case now before us, might well have defined the terms 'inference' and 'presumption', but in the light of all the instructions given we see no reversible error in failing to do so. These words may, in the mind of the scholar, involve some fine legalistic distinctions, but to the average person their meaning is neither so veiled nor uncertain as to require a definition. (Authorities cited.)' (Emphasis supplied.)

We do not find instruction 5 erroneously stated the law regarding prima facie evidence of negligence.

Use of the words infer, assume, inference or assumption were not misleading, and possibly more readily understood by laymen jurors than the legalistic term 'prima facie.'

As this court said in Law v. Bryant Asphaltic Paving Co., 175 Iowa 747, 753, 157 N.W. 175, 177, 178, 7 A.L.R. 1189: 'It is probably true that no instruction or charge to a jury has ever been drawn with such perfect clearness and precision that an ingenious lawyer in the seclusion and quiet of his office with a dictionary at his elbow, cannot extract therefrom some legal heresy of more or less startling character. The real test of the meaning and effect of an instruction for the purpose of review by an appellate court ought to be, and we think is, the idea which the language objected to is fairly calculated to convey to the minds of jurors drawn from the ordinary walks of life; and the fact that upon a minute technical or hypercritical analysis some other interpretation can be placed thereon may be disregarded.' See also Hicks v. Goodman, 248 Iowa 1184, 1189, 85 N.W.2d 6.

We now hold the challenged words employed by trial court, in the subject instruction, were neither misleading nor so improper as to constitute reversible error.

IV. By his answer defendant alleged plaintiff's injuries were the result of an intervening independent cause, and contends trial court erred in failing to instruct the jury on that issue.

In support of this position he leans heavily, if not entirely, on Klunenberg v. Rottinghaus, 256 Iowa 731, 129 N.W.2d 68. But we find that case neither factually comparable nor the conclusion there reached here controlling.

Plaintiff and her husband, in the Klunenberg case had nothing to do with cattle owned by defenda...