Mitchell v. Ridgway

Citation1966 NMSC 265,77 N.M. 249,421 P.2d 778
Decision Date19 December 1966
Docket NumberNo. 8007,8007
PartiesEdd MITCHELL, Plaintiff-Appellant, v. James Richard RIDGWAY, Defendant-Appellee.
CourtSupreme Court of New Mexico
Mack Easley, Robert F. Pyatt, Ray H. Potter, Hobbs, for appellant
OPINION

E. T. HENSLEY, Jr., Chief Judge, Court of Appeals.

The plaintiff's second amended complaint sought to recover damages from the defendant. The defendant met the complaint with a motion to dismiss for failure to state a claim upon which relief could be granted. From a judgment sustaining the motion and dismissing all three counts of the complaint the plaintiff now appeals.

The admitted and stipulated facts disclosed that the plaintiff, in June, 1964, while driving an automobile at night on paved State Highway No. 132 north of Hobbs struck a horse owned by the defendant. At the scene of the accident there was a legal fence on the east side of the highway. On the west side there was a fence, but it did not meet the minimum standards of a legal fence as defined by Section 47--17--3, N.M.S.A.1953. The residence of the defendant was almost two miles north of the scene of the accident and on the east side of the highway. On the east side of the highway near the defendant's residence there was no fence. The corral where the horse was kept was over a hundred feet from the highway and enclosed approximately two acres. The corral was constructed of woven wire attached to steel posts and was six feet high. The gate to the corral was fourteen feet long with one post in the middle, it was made of chicken wire four feet high with a one by four timber above the wire.

Count one of the second amended complaint alleged, inter alia, that the accident was the proximate result of the defendant's negligence in failing to restrain and confine his horse to his premises and permitting it to roam at large and unattended upon a heavily traveled public highway. The trial court held that this did not state a claim upon which relief could be granted. It should be noted that the judgment of the trial court was entered on May 3, 1965, this was long before the decision of this court in Grubb v. Wolfe, 75 N.M. 601, 408 P.2d 756. It is admitted that the decision in that case is controlling here unless it be reversed. Although the defendant moved to dismiss the complaint for failure to state a claim upon which relief could be granted, and the judgment sustained the motion, it should be treated as a summary judgment in view of the reception of the stipulated facts. In Grubb v. Wolfe, supra, we stated that the owner of livestock has a duty to care for his property as a reasonable man, and that he may be liable for injuries to motorists resulting from collisions with his animals due to his negligence in permitting them to be on the highway. Questions of negligence are generally questions for the jury to decide. Hole v. Womack, 75 N.M. 522, 407 P.2d 362; Willims v. Neff, 64 N.M. 182, 326 P.2d 1073. Counsel for the defendant have ably argued that Grubb v. Wolfe is contrary to the common law. In Ickes v. Brimhall, 42 N.M. 412, 79 P.2d 942 we said:

'* * * In 1876, the common law, as recognized in the United States, was adopted as our rule of practice and decision. Laws 1876, c. 2, § 2 (1929 Comp. § 34--101). And, except as superseded or abrogated by statute or constitution, or held to be inapplicable to conditions in New Mexico, the common law remains the rule of practice and decision.'

Modern highways and vehicular traffic in New Mexico with livestock permitted to roam at large presents an intolerable situation. We neither overrule nor modify Grubb v. Wolfe. We hold that it is for the trier of the facts to determine whether the owner of the animal has used reasonable care to restrain his livestock.

Count two of the second amended complaint alleged that the accident was the proximate result of the defendant's negligence per se in permitting his horse to graze, wander or run at large upon State Highway No. 132, which at the time and place of the accident was fenced on both sides, all in violation of sec. 40A--8--10 and Sec. 64--18--62 N.M.S.A., 1953.

The statutes just referred to, at the time of the accident in controversy, were as follows:

'Section 40A--8--10. Unlawfully permitting livestock upon public highways consists of any owner or custodian of livestock negligently permitting his livestock to run at large upon any part of a public highway which is fenced on both sides thereof.

'Every owner or custodian of livestock shall exercise diligence to keep his livestock off the state public fenced...

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17 cases
  • Tapia v. McKenzie
    • United States
    • Court of Appeals of New Mexico
    • August 6, 1971
    ...appeals. Summary judgment. The basis of any liability on the part of defendant in this case is negligence. See Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966); Grubb v. Wolfe, 75 N.M. 601, 408 P.2d 756 (1965); § 40A--8--10, N.M.S.A.1953 (Repl.Vol. 6, Supp.1969); § 64--18--62, N.M.S.A.......
  • Slack v. Villari
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1983
    ... ... 167, 88 S.E.2d 287, 288 (1955) (purpose is to protect the general public from "the evils" of animals running at large); Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778, 780 (1966) (purpose is to protect the motoring public). But see, Shuck v. Cook, 494 P.2d 306, 308-09 ... ...
  • Lollar v. Poe
    • United States
    • Alabama Supreme Court
    • June 18, 1993
    ...Ambrogini v. Todd, 197 Mont. 111, 642 P.2d 1013 (1982); Jensen v. Nielson, 91 Nev. 412, 537 P.2d 321 (1975); Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966); Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 711 (1953); Burnett v. Rice, 39 Ohio St.3d 44, 529 N.E.2d 203 (1988); Kathren v. Oleni......
  • Roberts v. Weber & Sons, Co.
    • United States
    • Nebraska Supreme Court
    • June 23, 1995
    ... ... See, e.g., Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966) ...         However, the Court of Appeals articulated an alternative reason for prohibiting the ... ...
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