Roberts v. Weber & Sons, Co.
| Decision Date | 23 June 1995 |
| Docket Number | No. S-93-353,S-93-353 |
| Citation | 248 Neb. 243,533 N.W.2d 664 |
| Parties | Thomas E. ROBERTS, doing business as Tom Roberts Trucking, Appellee, v. WEBER & SONS, CO., a Nebraska corporation, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Verdicts: Appeal and Error. In determining the sufficiency of the evidence to sustain a verdict in a civil case, an appellate court considers the evidence most favorably to the successful party and resolves evidential conflicts in favor of such party, who is entitled to every reasonable inference deducible from the evidence.
2. Judgments: Appeal and Error. Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court has an obligation to reach a conclusion independent of that of the inferior court.
3. Negligence. In a conventional negligence case, the mere occurrence of an accident which causes an injury and does damage does not create a presumption of negligence or authorize an inference of negligence.
4. Negligence. Res ipsa loquitur is a qualification of the general rule that negligence is not to be presumed.
5. Negligence: Circumstantial Evidence. The doctrine of res ipsa loquitur is not a matter of substantive law, but, as a form of circumstantial evidence, is a procedural matter.
6. Trial: Negligence. If res ipsa loquitur applies, an inference of a defendant's negligence exists for submission to the fact finder, which may accept or reject the inference in the factual determination of whether the defendant is negligent.
7. Negligence: Proof. In order that the doctrine of res ipsa loquitur may be invoked, it must be shown that the occurrence is one which would not, in the ordinary course of things, happen in the absence of negligence; the instrumentality which produces the occurrence is under the exclusive control and management of the alleged wrongdoer; and there is an absence of explanation by the alleged wrongdoer.
8. Livestock: Highways: Negligence. Livestock owners owe merely a duty of ordinary care to travelers using abutting highways.
9. Livestock: Negligence. Res ipsa loquitur can apply in escaped-livestock cases even where the owner of the animal is held to only an ordinary standard of care.
10. Livestock: Highways: Negligence: Jury Instructions. In certain cases wherein escaped livestock are involved in a collision with a vehicle on a public road, it might be proper for the trial court to instruct the jury regarding res ipsa loquitur.
11. Verdicts: Appeal and Error. Where the evidence is conflicting, an appellate court will not ordinarily interfere with the verdict of the jury unless it is clearly wrong.
Jefferson Downing, of Bruckner, O'Gara, Keating, Hendry, Davis & Nedved, P.C., Lincoln, for appellant.
Carl J. Sjulin, of Rembolt Ludtke & Berger, Lincoln, for appellee.
Thomas E. Roberts, doing business as Tom Roberts Trucking, brought this negligence action based on the doctrine of res ipsa loquitur against Weber & Sons, Co. (Weber), for damages suffered when a semi-tractor trailer driven by Roberts collided with several cattle owned and controlled by Weber near the intersection of Nebraska Highway 6 and Saline County Road 1300. A jury awarded Roberts $18,125.71. Weber appealed, and the Nebraska Court of Appeals, in a memorandum opinion, reversed the verdict and ordered the action dismissed, holding that the district court should have granted Weber's motion for directed verdict because res ipsa loquitur was inapplicable to the facts of the instant case. We granted Roberts' petition for further review, and we now reverse the Court of Appeals' decision.
Roberts is the owner and operator of Tom Roberts Trucking. During the early morning hours of October 23, 1991, Roberts was hauling a load of feed salt from Hutchinson, Kansas, to Fort Dodge, Iowa. Though it was still dark outside, the weather was dry and clear. Roberts' route took him through the town of Fairbury, Nebraska, where he got onto state Highway 15. Roberts took Highway 15 straight north until he reached a stop sign at the intersection of Highway 15 and Highway 6. Roberts turned right onto Highway 6. From the point where he entered upon Highway 6, Roberts testified that the road was level and flat for a short distance until he reached a railroad overpass. The railroad overpass consisted of a bridge which inclined and then angled down onto a level stretch of road. Roberts testified that as he crossed over the bridge and leveled out at the bottom, he saw the eyes of several cattle reflected in his low-beam headlights. The evidence indicated that approximately 100 to 175 cattle were present on the highway. Roberts slammed on the brakes, but the semi struck four of the cattle before it came to a halt.
The cattle were owned by and under the exclusive management and control of Weber. Evidence adduced at trial indicated that the cattle escaped from "pen # 7," which was located near the highway on Weber's farm. Roberts claimed that the cattle escaped through "gate # 1" in pen # 7. According to Weber, the cattle in pen # 7 pressed up against gate # 1 and broke the top hinge of that gate. The bottom hinge allegedly remained intact, as did the chain securing the side of gate # 1 opposite the hinged side. Weber theorized that when the top hinge broke, the gate pivoted outward at enough of an angle to allow the cattle to crawl over the gate. Exhibits entered into evidence in the form of photographs did not show any stress or damage to the bottom hinge or to the gate itself.
Weber testified that pen # 7 was constructed of 2-inch steel pipe sitting in concrete with a 2-inch top rail and a "sucker rod" welded on the inside to the pen. Weber's uncontradicted testimony reflected that of the three types of commonly used fence material--barbed wire, electric wire, and steel pipe--the steel pipe was the most expensive and most secure.
Greg Sherwood, who worked for Weber as a "pen rider," also testified at trial. Sherwood stated that as a pen rider, it was his duty to ride through the cattle each day and check their health, and to check the fences and gates to make sure the cattle were secured in their pens. Sherwood testified that when he checked the pens on October 22, the day prior to the accident, pen # 7 was secure.
In his amended petition, Roberts sought damages for property damage to his semi, towing charges, and downtime caused by the alleged negligence of Weber. Roberts alleged res ipsa loquitur as his sole basis for showing negligence on the part of Weber. The case was tried to a jury in the district court for Saline County. The district court submitted the issue of res ipsa loquitur to the jury. The jury returned a verdict in favor of Roberts and awarded Roberts $18,125.71 in damages.
Weber appealed to the Nebraska Court of Appeals, which reversed the verdict and ordered the case dismissed in a memorandum opinion issued January 23, 1995. The Court of Appeals held that res ipsa loquitur was inapplicable to cases where cattle that escaped from a pen caused an accident, based on this court's holding in Dizco, Inc. v. Kenton, 210 Neb. 141, 313 N.W.2d 268 (1981), wherein we held that livestock owners merely owed a duty of ordinary care to travelers using abutting highways, and on the Court of Appeals' finding that "cows escaping from their pen and appearing on a public highway is not so unusual in this state that such would ordinarily not occur in the absence of negligence." Roberts successfully petitioned this court for further review.
Roberts contends that the Court of Appeals erred in (1) concluding, as a matter of law, that res ipsa loquitur cannot be utilized to establish the liability of an owner of escaped livestock involved in a collision with a motor vehicle on a highway; (2) holding that the use of res ipsa loquitur requires a finding of negligence; and (3) holding that res ipsa loquitur is inapplicable to all escaped-livestock cases.
In determining the sufficiency of the evidence to sustain a verdict in a civil case, an appellate court considers the evidence most favorably to the successful party and resolves evidential conflicts in favor of such party, who is entitled to every reasonable inference deducible from the evidence. Holman v. Papio-Missouri River Nat. Resources Dist., 246 Neb. 787, 523 N.W.2d 510 (1994); Bradley v. Hopkins, 246 Neb. 646, 522 N.W.2d 394 (1994); Terry v. Duff, 246 Neb. 524, 519 N.W.2d 550 (1994).
Roberts' assignments of error present a question of law. Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court has an obligation to reach a conclusion independent of that of the inferior court. Ruch v. Conrad, 247 Neb. 318, 526 N.W.2d 653 (1995).
The primary issue presented by Roberts is whether the district court properly applied the doctrine of res ipsa loquitur to the facts of the instant case. This court has not previously determined whether res ipsa loquitur applies to cases involving the collision of a vehicle with escaped livestock on a public road.
In a conventional negligence case, the mere occurrence of an accident which causes an injury and does damage does not create a presumption of negligence or authorize an inference of negligence. Kliewer v. Wall Constr. Co., 229 Neb. 867, 429 N.W.2d 373 (1988). Res ipsa loquitur is a qualification of the general rule that negligence is not to be presumed. Security Ins. Co. v. Omaha Coca-Cola Bottling Co., 157 Neb. 923, 62 N.W.2d 127 (1954). The doctrine of res ipsa loquitur is not a matter of substantive law, but, as a form of circumstantial evidence, is a procedural matter. Harvey v. Metropolitan Utilities Dist., 246...
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