Peterson v. Pawelk, 47405

• Decision Date: 17 February 1978
• Docket Number: No. 47405,47405
• Citation: 263 N.W.2d 634
• Parties: Marilyn L. PETERSON, Appellant, v. David P. PAWELK, Respondent, Chester and Esther Mattson, husband and wife, Respondents.
• Court: Minnesota Supreme Court

Page 634

263 N.W.2d 634

Marilyn L. PETERSON, Appellant, v. David P. PAWELK, Respondent Chester and Esther Mattson, husband and wife, Respondents.

No. 47405.

Supreme Court of Minnesota.

Feb. 17, 1978.

William B. Haas, Hutchinson, for appellant.

Clarance E. Hagglund and Joel M. Muscoplat, Minneapolis, for Pawelk.

Jerome E. Kline, Bloomington, for Mattson.

Considered and decided by the court without oral argument.

PER CURIAM.

This action was brought by plaintiff, Marilyn L. Peterson, to recover for injuries she sustained when an automobile driven by defendant David P. Pawelk, in which plaintiff was a passenger, collided with a bull owned by defendants Chester and Esther Mattson. On the basis of a special verdict in which the jury found neither defendant Pawelk nor defendant Chester Mattson negligent, the court ordered judgment for defendants. Plaintiff in this appeal contends that defendants were negligent as a matter of law, claiming defendant Pawelk failed to keep a proper lookout and defendants Mattson violated Minn.St. 346.16, which prohibits owners of domestic animals from permitting them to run at large. Our review of the record requires us to reject these contentions and affirm the judgment.

After denying plaintiff's motions for a directed verdict, the trial court submitted the issues of negligence, causation, and damages to the jury. It found in a special verdict that plaintiff had sustained damages of $16,000, but that neither defendants Pawelk nor Chester Mattson was negligent. ¹

The accident occurred about 10 p. m. August 14, 1973, on Wright County Highway No. 1. At the scene of the accident the road has sand shoulders about a foot wide which slope toward ditches on both sides of the road. The ditch on the east side is approximately 21/2 feet deep. The road is straight and level, the weather was good, there was no traffic, and Pawelk was driving in the southbound lane at a speed between 40 and 45 miles per hour. Plaintiff sat in the front seat of the automobile and her brother Larry, his wife, and their daughter sat in the back seat.

The 10-month-old, 1,000-pound bull which collided with Pawelk's automobile was one of a herd of cattle which defendants Mattson kept in a grove on the west side of the road. The area was fenced by a two-strand, barbed wire fence running parallel with the road about 25 feet from its west edge. The fence was about 4 feet high, and the bottom strand was electrically charged. Defendant Chester Mattson testified that he kept the fence in good repair and that no cattle had escaped from the pasture before that evening, but he admitted that an animal of the bull's age and size could jump over a fence more than 5 feet high if the animal were frightened.

Plaintiff testified that when she first saw the bull it was standing 20 to 30 feet away from the car with its front legs on the shoulder of the northbound lane and its hind legs on the downslope. It was looking west, and she thought it was standing still. As she screamed, the bull ran to the west across the northbound lane, into the southbound lane. Pawelk said he saw the animal when plaintiff screamed and that its hind legs were then on the shoulder, the rest of its body in the northbound lane, and that it was running. He estimated that the bull was 20 to 25 feet from the automobile at that point. He did not attempt to turn but slammed on his brakes, causing the car to skid. He could not stop before the bull struck the left front of the vehicle, bounced or was thrown over the hood, and fell to the pavement in front of the automobile.

Larry Peterson gave a different version of the accident. He testified that he saw the bull before plaintiff screamed and Pawelk saw it, and that the animal was then in the southbound lane two or three car lengths (36 to 54 feet) away and coming toward the headlights. He thought a maximum of 5 seconds elapsed between the time he first saw the bull and the occurrence of the collision.

In spite of the conflicting testimony about the location of the bull when it was first seen by defendant Pawelk, plaintiff contends that under any version of the accident he was negligent as a matter of law because he did not keep a proper lookout and thus could not avoid the collision.

As we said in Bowe v. Fredlund, 295 Minn. 103, 108, 203 N.W.2d 327, 331 (1972):

"The issue of negligence is for the jury except in those cases where it clearly appears to the trial court, after accepting the view of the evidence most favorable to the adverse party including all reasonable inferences to be drawn therefrom, that it would be its duty to set aside a contrary result as not justified by the evidence or as contrary to the law applicable to the case."

Viewing the evidence in the light most favorable to Pawelk requires the conclusion that the jury could have determined that he was driving at a reasonable speed, that the bull did not appear at the edge of the road and within the range of his headlights before plaintiff saw it, that he saw the animal almost as soon as she did, and that it was then only 20 to 25 feet away and running across the northbound lane toward his vehicle. The jury could also have found that Pawelk had no time to do more than apply his brakes and that the collision was unavoidable.

Plaintiff contends, nevertheless, that because the road was straight and level, the weather was good, there was no traffic, and Pawelk had no other distractions, he should have seen the bull when it was "standing in the ditch," and if he had done so, he could have slowed his vehicle and gone by the animal without incident. There is no proof that the animal was standing in the ditch or would have been clearly visible if it was....