Ritchie v. Schaefer

• Decision Date: 12 March 1963
• Docket Number: No. 50912,50912
• Citation: 120 N.W.2d 444,254 Iowa 1107
• Parties: Dorothy RITCHIE, Appellant, v. August SCHAEFER, Appellee. Edward RITCHIE, Appellant, v. August SCHAEFER, Appellee.
• Court: Iowa Supreme Court

Page 444

120 N.W.2d 444

254 Iowa 1107

Dorothy RITCHIE, Appellant, v. August SCHAEFER, Appellee.

Edward RITCHIE, Appellant, v. August SCHAEFER, Appellee.

No. 50912.

Supreme Court of Iowa.

March 12, 1963.

Breese & Cornwell, Mason City, for appellants.

Pappas & Senneff, Mason City, for appellee.

PETERSON, Justice.

This is an action for damages arising by reason of a collision between plaintiffs' car and some Angus cattle which had escaped from defendant's cattle yard and strayed upon public highway No. 65 near Mason City. The court submitted the case to the jury. The jury returned a verdict in favor of defendant. Plaintiffs appealed.

There is only one issue in the case. The trial court instructed the jury the presence of the cattle upon the highway in front of defendant's farm home was prima facie evidence of negligence. Plaintiffs allege this was error, and the trial court should have instructed the jury the straying of the cattle was negligence per se.

The case rests upon an interpretation of § 188.2, Code of Iowa 1960, I.C.A. The provisions of the section are: ' § 188.2. Restraint of animals. All animals shall be restrained by the owners thereof from running at large.'

I. On the morning of August 18, 1959, plaintiffs were driving north about 1:00 A.M. on U. S. Highway No. 65. Edward Ritchie was driving. His wife Dorothy was sitting in the front seat with him. The car was a new Chevrolet station wagon and their five children were sleeping in the rear of the car. Plaintiffs left Tulsa, Oklahoma, on the morning of August 17th and intended to drive through to Southern Minnesota without stopping, except for their meals. A few miles south of Mason City several Angus steers suddenly appeared on the blacktop highway less than 100 feet in front of plaintiffs. Mr. Ritchie was driving about 45 miles per hour and was not able to stop in said distance. He turned his car toward the left, but even then when he reached the cattle, his car hit a steer. Both plaintiffs received personal injuries. The cattle belonged to defendant August Schaefer.

On the day of the accident the defendant had 30 head of Angus cattle in a cattle yard near the highway. They weighed about 1000 pounds each. The enclosure was well fenced. The posts were 6 inches in diameter and about 8 feet in length. The gate on the enclosure was a heavy duty steel gate. When defendant fed the cattle on August 17th he particularly noticed the gate. The gate was hooked with a chain and snap and was secured with a wire. He found the wire somewhat twisted and placed a new 11 gauge wire on the gate, fastening it to the post. After the accident he noticed the wire was untwisted and the chain was broken.

Mrs. Schaefer and the children in the family all testified they had not opened the gate that day. Mrs. Schaefer testified she heard a car in their yard late that night before the accident. When she looked out the window the car was leaving the farmyard. The trial court instructed the jury that it was prima facie evidence of negligence on the part of defendant to permit his cattle to run at large. The court also instructed the jury that defendant could show what care he exercised in restraining his cattle, and it was for the jury to decide whether he exercised reasonable and ordinary care. It is at this point the only question at issue arises. Plaintiffs contend the trial court should have instructed the jury the presence of the cattle on the highway was negligence per se.

Webster's Dictionary defines 'per se' as 'By, of, or in itself.' 'Prima facie' is defined as 'Evidence sufficient in law to raise a presumption of fact in question, unless rebutted.'

II. It has been established by decisions in Iowa that a situation such as pertains in the instant case is prima facie evidence of negligence. The trial court in giving its instructions to the jury followed such precedents.

There was no problem involved in the horse and buggy age. Even if a hog or a steer was wandering upon the highway the horse and buggy were traveling so slowly that the horse could and did easily avoid a straying animal. The problem arose when we entered the automobile age. The first case touching upon damages by reason of animals running at large and being struck by an automobile was Strait v. Bartholomew, 195 Iowa 377, 191 N.W. 811. Defendant had permitted a calf to run at large upon the highway. In this early case the court did not go as far as to the question of negligence as in later cases. However, the court did say: 'The defendant was bound to use ordinary care and prudence to keep and maintain a fence around the pasture in which his stock was confined, and to adopt means that were reasonably suitable to prevent the stock from getting on the highway. * * *' The court instructed: '[I]f you find that said calf was running at large through some negligent act of commission or omission on the part of the defendant, then you would be justified in finding the defendant negligent in permitting said calf to run at large.'

The next case of this type was Stewart v. Wild, 196 Iowa 678, 195 N.W. 266. This case involved several hogs which had strayed upon the highway. Plaintiff's car struck the hogs, overturned, and plaintiff and his family were injured. This was in the days of 'demurrers.' Defendant filed a demurrer which was sustained by the trial court. This court reversed and remanded. Several principles of law with reference to animals on highways were announced in the decision. The question was raised in the case as to whether the restraint of animals statute pertained to travelers on highways as well as to the farmer's neighbors from whose farm animals were restrained.

One of the allegations of defendant in his demurrer was '[t]hat such statute has no application to the rights of a traveler upon the highway, and that it imposes upon the owner of swine no duty with reference to such highway travel.' The court said: The record indicates that such was the controlling reason for the sustaining of the demurrer. We note first, therefore, that this conception of the nature of the action is an erroneous one. * * * It is the fundamental law of the highway that it is subject to the use of the traveling public, and that it must be kept free from such obstructions as are not incident to its use for travel.'

As pertaining particularly to the question of evidence the court said: 'Proof that the hogs were running at large would doubtless be presumptive evidence of defendant's breach of statutory duty, and therefore of negligence. What circumstances might be deemed as sufficient to excuse the defendant and to render him free from fault is a question not involved in the demurrer.'

The latest direct decision of this court involving the question of damages by reason of animals running at large upon highways is the case of Hansen v. Kemmish, 201 Iowa 1008, 208 N.W. 277, 45 A.L.R. 498. This case involved a boar, running at large on the highway. Plaintiff was driving a Ford car along the road about 7:30 P.M., on October 18, 1921. The hog appeared suddenly and plaintiff could not miss him. When he struck the hog, his car was thrown to the left and upset and plaintiff was injured. With reference to negligence the court said: 'Limited to the particular question raised in this case, we are of the opinion that the defendant was prima facie negligent in permitting his boar to be at large on the highway; that it was competent for him to show, if he could, that he did in fact exercise reasonable and ordinary care in restraining the animal; * * * and that the question of negligence in this case is, as it is ordinarily, one of fact for the jury.'

The question now confronting the court is whether or not we are justified in overruling the Hansen case, and prior similar cases, and deciding that in this case, and hereafter, the owner of cattle, hogs, etc., shall be guilty of negligence per se when such animals wander upon the highways of our state.

III. Appellants have not quoted from nor cited to us any case later than the Hansen case in the State of Iowa holding that the presence of cattle, hogs etc., on the public highway is negligence per se. It is appellants' position that we have established such a degree of negligence in automobile and perhaps...