Matteson v. Polanchek, 8515

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: STRUTZ; TEIGEN
• Citation: 164 N.W.2d 54
• Parties: Boyd MATTESON, Plaintiff and Respondent, v. Andrew POLANCHEK, Defendant and Appellant. Civ.
• Docket Number: No. 8515,8515
• Decision Date: 23 January 1969

Page 54

164 N.W.2d 54 Boyd MATTESON, Plaintiff and Respondent,
v.
Andrew POLANCHEK, Defendant and Appellant. Civ. No. 8515. Supreme Court of North Dakota. Jan. 23, 1969.

Syllabus by the Court

1. Where an appeal is taken from a judgment entered in an action tried to the court without a jury, and appellant demands trial de novo, this court will try the case anew, giving appreciable weight to the findings of the trial court.

2. Ordinarily, in an action by a motorist arising out of a collision between

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the motorist and a domestic animal on a public highway, the issue is whether the owner of the animal was negligent in allowing it to escape onto the highway. However, where such collision occurs on a four-lane interstate highway with controlled access, and the evidence shows that a gate to the right of way of such controlled-access highway was left open by the defendant, allowing a horse to get onto the highway, the fact that such animal escaped from a corral without negligence of the defendant is immaterial. The negligence which proximately caused the collision which resulted in injury to the plaintiff in such case was leaving the gate to such right of way open, not the failure to keep the animal confined.

3. For reasons stated in the opinion, the judgment of the trial court is affirmed.

Freed, Dynes & Malloy, Dickinson, for plaintiff and respondent.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for defendant and appellant.

STRUTZ, Justice.

This is an action brought to recover damages suffered by the plaintiff when his automobile, driven by his wife, collided with a horse belonging to the defendant on a restricted section of the interstate highway. The facts, in brief, disclose that in the summer of 1967 the State Highway Department called for bids for cutting of hay on the right of way along Interstate Highway No. 94. This is a four-lane limited-access highway, crossing the State of North Dakota from east to west. The entire right of way along this highway is inclosed by a very substantial fence maintained by the Highway Department, and entrance to such right of way can be gained only through gates which are kept closed and locked.

The defendant was the successful bidder for the right to cut hay along a portion, about five miles in length, of this right of way. In order to permit him to have access to the area, the Highway Department maintenance supervisor delivered to him the keys to locks on the gates to such entrances to the right of way, along which he was to cut the hay. At the time of the accident which resulted in plaintiff's alleged claim, the defendant was in the process of harvesting hay. The defendant kept no cattle on his home place and had only one horse on such farm, which was adjacent to Interstate 94. Believing it was safe to do so, he left the gate to the right of way open in the evening of the day of the accident, since he intended to continue his haying operations the following morning.

The horse which the defendant owned and kept at the home place was a riding pony. It was confined in a very substantial corral. There is no evidence that the defendant was in any way negligent in the escape of this horse from its corral. In some unexplained manner the horse did get out of its corral on the night of the accident, however. It wandered through the gate...