Matteson v. Polanchek, 8515

Decision Date23 January 1969
Docket NumberNo. 8515,8515
PartiesBoyd MATTESON, Plaintiff and Respondent, v. Andrew POLANCHEK, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

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 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 which had been left open by the defendant in the fence to the right of way and was struck by the vehicle driven by plaintiff's wife as it came up from the median between the lanes of traffic at a point near the gate, causing the damage complained of to the plaintiff's automobile. At the time of the accident, the plaintiff's wife was driving the automobile at a legal rate of speed, in the right lane of traffic, with lights on low beam to keep them from blinding drivers coming from the opposite direction on the other side of the median. Both parties waived trial by jury, and the case was submitted to the court for determination. The court, on the above evidence, found for the plaintiff, and the defendant appeals to this court, demanding trial de novo.

Where an appeal is taken from a judgment in an action tried without a jury, and the appellant demands a trial de novo, this court will try the case anew, giving appreciable weight to the findings of the trial court. Eickhof Construction Co. v. City of Grafton, 123 N.W.2d 580 (N.D.1963); C.I.T. Corporation v. Hetland, 143 N.W.2d 94 (N.D.1966); Wheat v. Patterson, 154 N.W.2d 367 (N.D.1967); Spielman v. Weber, 118 N.W.2d 727 (N.D.1962).

The question raised by this appeal, involving collision between a motorist and livestock on a controlled-access interstate highway, is presented for the first time in this court. In all prior actions involving collision between a motor vehicle and domestic animals on a public highway, the issue to be determined had been whether...

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4 cases
  • Bjerke v. Heartso
    • United States
    • North Dakota Supreme Court
    • 19 Gennaio 1971
    ... ... They will, however, be accorded appreciable weight. Matteson v. Polanchek, 164 N.W.2d 54, 55 ... Page 500 ... (N.D.1969); Verry v. Murphy, 163 N.W.2d 721, ... ...
  • Soo Line R. Co. v. City of Wilton
    • United States
    • North Dakota Supreme Court
    • 3 Novembre 1969
    ...Act. The importance of this distinction is that, under § 28--27--32, N.D.C.C., this court must try the entire case anew (Matteson v. Polanchek, 164 N.W.2d 54 (N.D.1969)); whereas the scope of review under § 28--32--19, N.D.C.C., is restricted to the record which was made and certified by th......
  • Hassan v. Brooks
    • United States
    • North Dakota Supreme Court
    • 24 Luglio 1997
    ...to our opinions, we adhere to our previous opinions"). ¶8 We further note that eight years after that amendment, in Matteson v. Polanchek, 164 N.W.2d 54, 56 (N.D.1969), we reaffirmed the negligence standard of care for damage sustained on motor vehicles when we stated "[i]f this were the us......
  • Schmidt v. Leben, 8568
    • United States
    • North Dakota Supreme Court
    • 10 Marzo 1971
    ...a trial de novo the supreme court will try the case anew, giving appreciable weight to the trial court's findings. Matteson v. Polanchek, 164 N.W.2d 54 (N.D.1969). In this case the appellants have demanded a trial de novo, and we will proceed to determine the facts from the evidence First, ......

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