Pongetti v. Spraggins, 38507

• Decision Date: 17 November 1952
• Docket Number: No. 38507,38507
• Citation: 215 Miss. 397,34 A.L.R.2d 1277,61 So.2d 158
• Parties: , 34 A.L.R.2d 1277 PONGETTI v. SPRAGGINS.
• Court: Mississippi Supreme Court

Page 158

61 So.2d 158

215 Miss. 397, 34 A.L.R.2d 1277

PONGETTI v. SPRAGGINS.

No. 38507.

Supreme Court of Mississippi.

Nov. 17, 1952.

Roberson, Luckett & Roberson, Clarksdale, for appellant.

Brewer & Brewer, Clarksdale, for appellee.

KYLE, Justice.

This is an action for damages alleged to have been sustained by the plaintiff, J. V. Pongetti, when his automobile, which was being driven by the plaintiff on U. S. Highway No. 61 a few miles north of Clarksdale collided with a calf owned by the defendant, C. A. Spraggins. At the conclusion of the testimony the court granted a peremptory instruction for the defendant, and judgment was entered in favor of the defendant. From that judgment the plaintiff prosecutes this appeal.

The facts proved upon the hearing are simple and undisputed. The accident occurred on the night of September 9, 1951, about 10:30 o'clock, as the plaintiff was proceeding in a southerly direction on U. S. Highway No. 61, in Coahoma County, enroute from Memphis to his home in Shelby, Mississippi. The plaintiff testified that he was driving his automobile at a rate of speed between 55 and 60 miles per hour; that the automobile was in good mechanical condition; that its lights were burning; and that its brakes were working; that when his automobile reached a point about ten feet from the place of impact, the defendant's calf dashed into the highway from the west and into the path of the approaching automobile; that the plaintiff did not see the calf before it entered upon the highway; and that it was impossible for him to avoid running into it. It was admitted in the pleadings that the calf was owned by the defendant and that it was alone and unattended. The calf weighed between 250 and 300 pounds.

The defendant owned and operated a cattle auction barn which was located on the east side of the highway and faced westwardly. The defendant bought and sold cattle and auctioned off cattle under the trade name of 'The North Mississippi Commission Company.' The defendant's barn was built of rough oak lumber. Its walls and all inside pens were 5 feet high; its gates were equipped with half-inch iron pipes which were bolted together when the gates were closed. The gate at the front of the barn was kept locked with a lock that could be opened only with a key kept in the office. The lot on which the barn was located was surrounded by a board fence 5 or 5 1/2 feet high. The spacing between the boards on the fence was graduated from 1 inch at the bottom to 6 inches at the top. The barn and all gates and fences were in good condition at the time the accident occurred. The accident occurred at a point on the highway about one-half mile south of the barn.

The defendant had purchased only a day or two prior to the date of the accident a group of 20 calves, including the calf involved in the accident; and at the time of the accident the defendant had on hand approximately 35 head of cattle at the barn.

The defendant testified that late in the afternoon of the day on which the accident occurred the defendant fed and watered the cattle, counted them, and then checked all the gates to see that they were locked; that he found that all of the gates were locked, and all of the cattle were accounted for. The defendant testified further that after the accident had occurred, about 10:30 p. m., he went back to the barn and again checked the gates and found them locked; that the barn and all gates were closed and that no part of the fence was broken; and that none of the other claves were missing.

The only allegation of negligence contained in the plaintiff's declaration is that 'The collision resulted from the negligence of the defendant in permitting the calf to run at large on said highway in violation of the statutes of Mississippi.' The defendant admitted in his answer that the calf involved in the accident was the defendant's calf; but the defendant stated in his answer that the defendant did not know that the calf was on the highway. The defendant alleged in his answer that he was guilty of no negligence, and the defendant denied that he had permitted the calf to run at large on the highway, or that he had violated any of the statutes of the State of Mississippi.

The plaintiff's action is based upon Chapter 200, Laws of 1948, Section 4876.5, Code of 1942, and the questions presented for our decision must be determined from the provisions of that act.

It was agreed that U. S. Highway No. 61 is a highway which is maintained by the State Highway Commission; that Coahoma County is under the State Livestock Law; and that Chapter 200 of the Laws of 1948, Section 4876.5, Code of 1942, is in full force and effect in that county.

The appellant's attorneys in their brief contend that the appellee was under a duty imposed by the above mentioned statute to restrain his calf from running at large on the highway; that he owned such duty to the appellant as a member of the traveling public; that he breached that duty through some act of negligence, and that such breach was the proximate cause of the collision which resulted in the appellant's automobile being damaged; and that the appellee is therefore liable to the appellant in a civil action for the damages sustained by the appellant as a result of the collision. The appellant offered no proof to show that the calf was at large on the highway with the permission or the knowledge of the appellee, or that the appellee had failed to exercise reasonable care to restrain the animal from being at large on the highway. But the appellant's attorneys contend that the doctrine of res ipsa loquitur should be applied in a case of this kind, and that proof of the fact that the appellee's calf was on the highway gives rise to an inference of negligence, and that the jury should have been permitted to say whether the appellee's explanation was sufficient to exculpate him from the charge of negligence.

'The conclusion to be drawn from the cases as to what constitutes the rule of res ipsa loquitur is that proof that the thing which caused the injury to the plaintiff was under the control and management of the defendant, and that the occurrence was such as in the ordinary course of things would not happen if those who had its control or management used proper care, affords sufficient evidence, or, as sometimes stated by the courts, reasonable evidence, in the absence of explanation by the defendant, that the injury arose from or was caused by the defendant's want of care.' 38 Am.Jur. 989, Negligence, Par. 295.

By the common law of England, an owner of cattle was bound to prevent them from entering upon the premises of another; he was required to fence his cattle in and keep them off any neighboring range or common. But in the early case of Vicksburg & Jackson R. Co. v. Patton, 31 Miss. 156, 66 Am.Dec. 552, it was held that such common law rule did not prevail in this state and that an owner of cattle may rightfully suffer his animals to go at large for pasture upon the neighboring range.

The Mississippi rule was spelled out in New Orleans, J. & G. N. R. Co. v. Field, 46 Miss. 573, wherein it was said: 'It is now well established by authority and reason in this state, that uninclosed lands, although private property, are a quasi common, or, as expressed in local parlance, a 'range,' in which the owners of cattle, and domestic animals generally, may permit them to go out at large and depasture without thereby incurring any responsibility as trespassers. The common law principle, which required the owner to confine his stock on his own premises and made him a wrongdoer if they escaped into the lands of his neighbor, never obtained in this state. But the converse is the rule; that each occupant of lands must secure his fields by strong and sufficient enclosures against the intrusion of animals; and that the owner cannot be held as a trespasser for their entering a close unless they have broken a fence deemed in law sufficient to exclude them. Uninclosed lands in this state are held subject to this right or easement.'

In Chicago, St. L. & N. O. R. Co. v. Jones, 59 Miss. 465, the Court said: '* * * The owner of cattle or horses has the right, even in an incorporated town to depasture them upon the commons, in the absence of any local legislation prohibiting it, and is not guilty of negligence in doing so.'

By the enactment of Section 1 of Article 6, Chapter 12, Hutchinson's Code, 1798 to 1848, the Legislature provided that if any cattle or other livestock should break into any grounds enclosed with a lawful fence the owner of such livestock should be liable to make reparation to the injured party for the amount of the damage sustained on account of the trespass. That early statute was the forerunner of the stock law now embraced in Sections 4864 to Section 4876, Code of 1942.

Section 4864, Code of 1942, expressly provides that any person owning or having under his control any livestock,...