Round v. Burns, 9078

• Citation: 20 A.L.R.2d 1048,74 A.2d 861,77 R.I. 135
• Decision Date: 09 June 1950
• Docket Number: No. 9078,9078
• Parties: , 20 A.L.R.2d 1048 ROUND v. BURNS. Ex.
• Court: United States State Supreme Court of Rhode Island

Page 861

74 A.2d 861

77 R.I. 135, 20 A.L.R.2d 1048

ROUND v. BURNS.

Ex. No. 9078.

Supreme Court of Rhode Island.

June 9, 1950.

On Rule to Show Cause July 18, 1950.

Remington, Thomas, Levy & Arnold, Earle B. Arnold, Providence, for plaintiff.

Walter Johnson, Martin Johnson, Providence, for defendant.

CONDON, Justice.

This is an action of trespass on the case for negligence which was tried in the superior court without a jury and resulted in a decision for the plaintiff. The case is here on defendant's bill of exceptions containing an exception to that decision and also several other exceptions. On our view of the exception to the decision it will not be necessary to consider the other exceptions.

The gist of the plaintiff's alleged cause of action is averred in his declaration as follows: 'For that, the said defendant on, to wit, the 10th day of October A. D. 1947 was driving, operating and controlling a certain automobile upon the State highway known as the Danielson Pike in the Town of Scituate, Rhode Island at a point near the intersection of said Danielson Pike with the Old Hartford Pike, so-called, within the zone marked 'cattle crossing' proceeding in a westerly direction and it then and there became and was the duty of the said defendant to operate said automobile in a careful manner so as not to damage the cow of the plaintiff which was crossing from the barnyard of the plaintiff to the pasture of the plaintiff within the zone designated by signs erected reading 'cattle crossing.' The plaintiff being in the exercise of due care. Yet the defendant wholly disregarding his duty in this respect so negligently and carelessly operated, drove and controlled his said automobile that he ran into the cow of the plaintiff with great force causing the death of said cow.'

There is no evidence in the record that the cow was crossing the highway from plaintiff's barnyard to his pasture. On the contrary the plaintiff himself testified that she strayed from the barnyard and 'trotted' out into the highway and collided almost immediately with defendant's automobile. The only eyewitness to the accident was the defendant. He testified in substance that the cow 'galloped' into the highway from behind some trees near plaintiff's driveway; that his car was then about 12 feet from her; and that he did not see her until she was right in front of him. At another point in his testimony he testified that she 'jumped' out from behind two trees alongside the highway. The trial justice commented on this variance in defendant's testimony and appeared to give it some weight in favor of the plaintiff.

On our view of the evidence such variance is not of decisive importance on the question of the defendant's alleged negligence. Whether the cow jumped into the highway or galloped along the highway into the front of defendant's car is of no consequence as it is clear from his testimony that in whatever manner she emerged upon the highway it was with such suddenness that there was no time to avoid colliding with her. He testified that he tried to prevent such collision by turning his car to the left, but without success. It is apparent not only from his testimony but also from plaintiff's testimony that the sudden and unexpected appearance of the cow in front of the car and not the negligence of the defendant was the sole proximate cause of the accident.

It is undisputed that the cow entered the highway abruptly and thereafter collided almost instantaneously with defendant's car. On this point there is a marked coincidence in the testimony of the defendant and the plaintiff. Plaintiff testified, as stated above, that the cow escaped from the barnyard and 'trotted' past him down the driveway into the highway. He further testified that as she entered the highway she turned left and headed toward Providence; that thereafter she was hidden from his view by some trees near the driveway; and that almost at once she was hit by defendant's car. How brief the interval was between the cow's appearance in the highway and her collision with the car is best illustrated by plaintiff's answer to the following question in cross-examination: 'And then how soon after the last sight that you had of that cow did you hear anything--did you hear any commotion? A. Only a matter of seconds, that's all, when she was hit.' And he had already testified in direct examination as to whether he saw the cow struck: 'No. She passed out of our line of vision and then the crash came.'

It is clear from this evidence that defendant was confronted with an emergency. Unless some negligent act on his part created such emergency and thus became the proximate cause of the accident, he cannot be held liable for plaintiff's loss. Plaintiff contends that there was evidence from which it could be inferred that defendant was operating his automobile at an unreasonable rate of speed and also that his brakes were defective, and that those acts were proximate causes of the collision. We are not persuaded that plaintiff has proved by a fair preponderance of the evidence that the defendant's speed was unreasonable or that his brakes were defective before the collision, but even assuming those facts to be proved we are clearly of the opinion that neither was a proximate cause. On the other hand we are convinced by the testimony of both plaintiff and defendant that the cow was killed solely as a result of suddenly running into the highway in front of defendant's automobile.

We are also of the opinion that defendant had no reason to anticipate stray animals rushing into the highway merely because he was in a part of the highway marked by 'cattle crossing' signs. This is not a case in which the crossing of cattle on the highway was involved. Although plaintiff pleaded such a case in his declaration he did not establish it by...