NUCLEAR CORPORATION OF AMERICA v. Lang, Civ. 03681.

• Decision Date: 19 January 1972
• Docket Number: Civ. 03681.
• Citation: 337 F. Supp. 914
• Parties: NUCLEAR CORPORATION OF AMERICA, Plaintiff, v. Harold LANG, Defendant.
• Court: U.S. District Court — District of Nebraska

337 F. Supp. 914

NUCLEAR CORPORATION OF AMERICA, Plaintiff, v. Harold LANG, Defendant.

Civ. 03681.

United States District Court, D. Nebraska.

January 19, 1972.

Peter E. Marchetti, of Nelson, Harding, Marchetti, Leonard & Tate, Omaha, Neb., for plaintiff.

Robert E. Otte, of Jewell, Otte, Pollock & Gatz, Norfolk, Neb., for defendant.

MEMORANDUM

RICHARD E. ROBINSON, Chief Judge.

This matter comes before the Court following a trial without a jury. The matter was taken under submission and counsel were granted time to prepare briefs. Briefs have now been presented, and the Court will now render its decision.

Plaintiff alleges in its complaint that on September 3, 1970, at approximately 12:50 o'clock A.M., plaintiff's employee, Bruce O. Buxton, was operating a 1969 White Freightlines tractor with trailer attached, which motor vehicle was possessed by the plaintiff. The trailer of said motor vehicle was loaded with certain steel products manufactured by the plaintiff, and the motor vehicle was being driven in a Northerly direction along U. S. Highway 81 in Pierce County, Nebraska, upon the right half of said highway in a careful and prudent manner and at a reasonable rate of speed.

It is further alleged that defendant at the time alleged conducted a farming operation adjacent to said highway on the East side thereof, with lanes and drives, serving said farming operation, intersecting the highway. In the course of said farming operations, defendant maintained certain livestock and in particular black angus cattle.

It is alleged that when plaintiff's aforesaid motor vehicle arrived at a point upon the highway, approximately four-tenths of a mile North of mile post No. 166 on said highway and in close proximity to a lane, from defendant's farming operation, which intersects said highway, a certain 600 pound black angus heifer owned by the defendant and which defendant had failed to keep confined, ran onto the highway in front of plaintiff's tractor.

It is alleged that plaintiff's employee, Buxton, made efforts to avoid colliding with the heifer by applying the brakes of plaintiff's motor vehicle, but was unable to avert the impact, whereby the heifer was jammed under the right front fender of the tractor and between said fender and the right front wheel, causing the aforesaid vehicle-combination to depart from the highway and roll over, spilling its load of steel products and pinning plaintiff's employee driver in the tractor. The employee, Buxton, died as a result of the injuries he sustained in this unfortunate occurrence. Plaintiff's tractor-trailer was allegedly damaged and beyond repair, and rendered useless except for scrap. Plaintiff's steel products which were loaded in the trailer of the motor vehicle were also damaged and rendered useless except for scrap.

Plaintiff alleges that the sole proximate cause of the damage it sustained from the wrecking of its motor vehicle and its contents, is the negligence of the defendant, in the following particulars, to-wit:

1 In failing to keep his heifer adequately confined or fenced so as to prevent it from wandering upon the public highway.

2 In failing to anticipate that such unconfined animal could collide with a motor vehicle traveling upon the public highway.

3 In permitting the animal to be without proper care and attendance to prevent its escape from confinement, and to wander at will in and about the public highway, thereby endangering the property and person of members of the public lawfully using said highway, particularly the property of the plaintiff.

Plaintiff seeks damages in the amount of $21,448.48.

In answering the allegations of plaintiff's complaint, the defendant admits that on or about September 3, 1970, at approximately 12:50 o'clock A.M., plaintiff's tractor-trailer was being operated in a Northerly direction, on U. S. Highway No. 81 in Pierce County, Nebraska, by plaintiff's employee, Bruce O. Buxton, now deceased.

Defendant also admits that he at said time conducted a farming operation adjacent to said U. S. Highway No. 81 on the East side thereof and in the course of said farming operation, maintained livestock, which were confined to his premises.

Defendant further alleges that plaintiff's truck ran off said highway and into defendant's feedlot, and that after said incident occurred, a heifer owned by defendant was found dead in the feedlot. Defendant denied that said dead heifer or any of defendant's other cattle were on the highway as alleged in plaintiff's complaint.

Defendant further alleges that if it is found that the heifer in question did escape the confines of the feedlot, that the escape was not due to any negligence on the part of defendant.

Finally defendant alleges that the wrecking of plaintiff's truck was the sole proximate result of the negligence of plaintiff's employee, Buxton. It is alleged that Buxton was negligent in traveling at an excessive rate of speed, failing to maintain a proper lookout, failing to have the vehicle under control and failing to stop or turn in time to avoid the accident.

The defendant, Harold Lang, testified at the trial, that he lives on a farm on the East side of U. S. Highway No. 81, 9 miles North of Norfolk, Nebraska, and has farmed from that point in Pierce County, Nebraska, since 1946.

Mr. Lang testified that on the day before the accident he and his family left his farm at noon leaving the farm unattended and did not return until shortly after midnight, at which time he discovered the wreckage of plaintiff's truck, with the trailer upset partially on the road and overturned tractor in his feedlot.

Mr. Lang sent his wife to call the state patrol while he and his two daughters chased the cattle in the feedlot to and through the barn into a catch-pen South of the barn. The barn has doors on both the North and South sides, as shown on the diagram appended hereto for illustrative purposes.

Corporal Hoeman of the Nebraska State Highway Patrol testified that he responded to a call around 1:00 o'clock A.M., on September 3, 1970, and caused certain photographs to be taken Exhibits 6 through 12, inclusive, and Exhibit 29. After discovering the dead Black angus heifer shown in Exhibit 11, he made an inspection of U. S. Highway No. 81 South of the point at which the vehicle had departed said highway.

He made certain measurements which he marked on Exhibit 5, the aerial photograph of the accident scene.

He places the Northernmost part of the wrecked trailer, which extended three feet into the pavement, as being 45 feet South of the fence which parallels the South side of the lane leading to defendant's house, and the tractor 64 feet North of the same fence, and 41 feet East of the East edge of the pavement into defendant's feedlot. The dead heifer was also in the feedlot 41 feet East of the pavement edge and 46 feet North of the right side of the overturned tractor.

Tire marks were visible on the highway 271 feet North of the spot where the dead heifer lay. It is logically inferable that the marks were left by plaintiff's vehicle.

The patrolman identified with the letter "k" on Exhibit five a lane leading to an unoccupied house owned by defendant.

The patrolman testified that he found black hair and hide on the East edge of the road surfacing just North of the lane leading to the unoccupied house. Scuff marks from the dead heifer were found on the shoulder of the road 75 feet North of the place where the first hide and black hair were found on the highway, and more hair was found on the fence 19 feet farther North of the scuff marks at that point on the fence where the tractor had broken through into the feedlot.

The patrolman flashed his light into the driveway, "k", just North of where the first hide and hair were found on the pavement, and observed animal tracks leading out of the muddy driveway.

There is no real dispute in the record as to the ownership of the dead heifer. All agree that it belonged to defendant.

On the basis of the foregoing facts this Court concludes that the only logical explanation for the accident is that plaintiff's vehicle did come in contact with a Black angus heifer owned by the defendant, and that the collision occurred in the right hand Northbound lane of U. S. Highway No. 81, at a point in front of defendant's farm near a driveway marked "k" on Exhibit 5. As a result of the collision, plaintiff's vehicle left the highway, ran into the ditch on the East side of the road, where the tractor and trailer separated. From the ditch the tractor continued on through the fence to defendant's feedlot, and overturned, whereupon the dead heifer, which had been pinned under the right front fender of the tractor as a result of the impact, was thrown loose landing some 46 feet from the tractor, in the feedlot.

Of course, all of the evidence adduced is circumstantial, and the findings of the last paragraph are simply what this Court finds to be logically and fairly inferable from the evidence thus adduced.

Since this Court has found that the truck hit the heifer on the highway, the fact necessarily follows that the heifer was not in confinement at the time, and if it ever was confined as alleged by the defendant in his answer, then it escaped somehow. If it escaped as a result of defendant's negligence then plaintiff may be entitled to recover.

Defendant testified he and his family left the farm unattended for some 12 hours. He stated that he checked the fences around the feedlot, in which he kept his cattle, before leaving. However, he also testified, on cross-examination, that he did not check the gate from the barn to what is known as the catch-pen.¹

The evidence as to the adequacy of the fences around defendant's feedlot is conflicting.

Of course, a farmer who maintains livestock in an area adjacent to an arterial highway is under an affirmative duty to keep the livestock confined so that they cannot wander onto the highway and endanger the lives and...