Rice v. Turner, 3685

• Decision Date: 27 November 1950
• Docket Number: No. 3685,3685
• Citation: 191 Va. 601,62 S.E.2d 24
• Parties: L. L. RICE v. SAMUEL CHESTER TURNER. Record
• Court: Virginia Supreme Court

Page 24

62 S.E.2d 24

191 Va. 601

L. L. RICE v. SAMUEL CHESTER TURNER.

Record No. 3685.

Supreme Court of Appeals of Virginia

November 27, 1950.

T. Warren Messick and F. A. Lewey, for the plaintiff in error.

Stuart B. Carter, for the defendant in error.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

On November 19, 1947, S. G. Turner, with three companions, was driving south on Lee Highway (Route 11), in Botetourt county, when his automobile collided with a cow owned by L. L. Rice. He instituted this action and recovered a verdict and judgment for $6,336.19, for personal injuries to himself, and damages to his automobile, resulting from the collision. Rice obtained this writ of error to review the judgment.

Rice, hereinafter referred to as 'defendant,' owns a farm approximately 10 miles north of the city of Roanoke, lying on both the east and west sides of Lee Highway. At the time of the accident, he had on this farm approximately 20 milch cows under the care and supervision of a manager, James H. Brogan, and two employees, Robert M. Williams and Savannah Williams, his wife. The cows were usually kept night and day on the east side of the highway in a pasture enclosed by a wire fence, but they were driven twice daily out of the pasture through a gate, across the highway, up a lane, to a dairy barn on the west side of the highway where they were fed and milked, and immediately thereafter driven from the barn to the pasture.

On November 19, 1947, around 6:00 p.m., the cows were driven out of the barn. They were stopped at the mouth of the lane, on the edge of the highway, while Brogan walked into the highway, stopped traffic with a red lantern and flashlight, and when he ascertained that the cows could be moved in safety, he instructed his two helpers, Robert and Savannah Williams, to drive them across the highway into the pasture. The gate was then shut and fastened.

Approximately two hours later -- that is, around 8:00 p.m. -- plaintiff, driving at a speed ranging from 40 to 45 miles an hour south on the three-lane highway, collided with a cow owned by defendant, which suddenly appeared in front of his car, running from the east to the west across the hard surface. The impact resulted in the death of the cow, personal injuries to plaintiff, and damage to his automobile to the extent of $246.00.

The trial court held that proof of the fact that the cow was on the highway, unattended, was not in itself sufficient to establish a prima facie case of negligence on the part of defendant -- that is, the doctrine of res ipsa loquitur did not apply.

This is a correct construction of the statute (Sec. 8-886 of the 1950 Code), as the pertinent parts thereof read: 'It shall be unlawful for the owner * * * of any horse, mule, cattle, hog, sheep, or goat, to permit any such animal * * * to run at large beyond the limits of his own land * * *. ' This language implies knowledge, consent, or a willingness on the part of the owner for such domestic animals to run at large. The statute does not cover a situation where the owner has used ordinary care to keep his stock confined to his premises. Gardner v. Black, 217 N.C. 573, 9 S.E. (2d) 10; Lloyd v. Bowen, 170 N.C. 216, 86 S.E. 797; Smith v. Whitlock, 124 W.Va. 224, 19 S.E. (2d) 617, 140 A.L.R. 737; 3 C.J.S., Animals, sec. 131, p. 1231.

A statute is not necessary to establish the duty of ordinary care. Such duty may arise from statute, from a municipal ordinance, or from the relation of the parties. The common law imposes upon every person the duty to exercise ordinary care in the use and maintenance of his own property to prevent injury to others.

In the early days of the Commonwealth it was not considered unsafe for domestic animals to run at large outside of the limits of municipalities, and damages resulting from animals at large on the highway could not be reasonably anticipated. However, with the advent of the motor vehicle, the extensive network of improved highways, the phenomenal increase in traffic, and the speed permitted by law, quite a different situation has been created. Under these circumstances, the duty to exercise ordinary care for the protection of others requires the owner of domestic animals, in the absence of statute, to exercise ordinary care to keep them off much traveled highways. It is common knowledge that a cow at large on a highway not infrequently becomes frightened at the glare of headlights of an automobile, and when so frightened it is as likely to run directly in front of the automobile as it is to run in any other direction. Under such circumstances, a cow, unattended, is a source of potential danger to lawful users of the highways.

We find no error in the ruling of the trial court, instructing the jury that it was the duty of defendant to exercise ordinary care to prevent his cow from running at large beyond the boundaries of his own land.

Defendant cotnends that the evidence for plaintiff is insufficient to sustain the verdict, finding that he failed to exercise ordinary care to prevent his cow from straying from his premises on the highway.

Plaintiff conceded that defendant exercised ordinary care in maintaining his fence enclosing the pasture on the east side of the highway. At least he offered no evidence tending to prove the contrary. The only evidence introduced to prove negligence on the part of defendant consisted of five photographs (taken several months after the accident) of the lane, the barn, and the fences on the west side of the highway. It appears from these photographs that there is a wire fence on each side of the lane leading from the highway to the side of the barn, and that the lane is not enclosed at either end. The wire fence, extending a short distance on the south side of the lane, appears to be old and somewhat dilapidated, but this fact is immaterial, as the uncontradicted testimony is to the effect that the cows, when in the barn or...