Scanlan v. Smith

• Decision Date: 15 July 1965
• Docket Number: No. 37056,37056
• Parties: Estelle SCANLAN and Robert Scanlan, Appellants, v. Donald SMITH and Katharine J. Smith, his wife, and the marital community composed thereof, Respondents.
• Court: Washington Supreme Court

Page 601

66 Wn.2d 601

404 P.2d 776

Estelle SCANLAN and Robert Scanlan, Appellants, v. Donald SMITH and Katharine J. Smith, his wife, and the marital community composed thereof, Respondents.

No. 37056.

Supreme Court of Washington, En Banc.

July 15, 1965.

Clarence H. Fidler, Port Angeles, for appellants.

Frank H. Roberts, Jr., Richard J. Thorpe, Seattle, for respondents.

HILL, Judge

The Washington Motor Vehicle Act (Laws of 1937, chapter 189, § 127, p. 913, which section does not appear in the Motor Vehicle or Highway Code, but is now codified under Animals, RCW 16.24.070 ¹), makes it unlawful for any person to cause or permit any livestock to graze or stray upon any portion of the right-of-way of any public highway within any stock restricted area. ²

A motorist and his wife traveling at night on one of the state's primary highways, within a stock restricted area, collided with cattle on the highway. They brought this action against the owner of the cattle to recover damages for the personal injuries sustained. The case was tried to a jury. At the conclusion of all of the evidence, the trial court granted a motion to dismiss; and from the judgment of dismissal, this appeal is prosecuted.

In granting the motion to dismiss, the trial court said:

'* * * I am at a loss to know what Smith (a defendant) should have done that he didn't do. It seems to me there is nothing that a man that had reasonable regard for the welfare of his own stock, which in the first place would be personal to him, or his duty as a decent citizen to travelers on the highway, that should have been done or could have been done, that he didn't do. Nobody has undertaken to tell this Court or the jury how that gate got opened, and I don't think speculating on possibilities would add anything to the solution of the question. In these days when vandalism seems to be one of the recreations of the younger generation anything like that could happen, but where does it come back so it could be fastened on Smith? * * * He comes back and by some method or other which no one has undertaken to explain, the cattle get out of the enclosure and some of them get on the highway. * * * I think I should have granted this motion at the time it was offered. You can say the Court was speculating and wanted to find out what the other side was putting in, and if you do say it I don't suppose I can blame you, but it wasn't that so much as I wanted to see this whole picture before resolving it. I am inclined to hold, and do hold, in this case there has been no negligence established on the part of the owner of the cattle, Smith. I don't think he permitted them to graze on the highway. He didn't leave then unattened. They weren't herded. And that is my judgment, gentlemen.'

The trial court also indicated that there might well be negligence on the part of the motorist barring any recovery, but conceded that to be a question for the jury. The basis for the dismissal was that the testimony, on behalf of the defendants, was that the cattle were enclosed in a wellfenced pasture, and that in the evening, some 6 hours before the collision, those taking care of the cattle for the owners had fastened both gates to the pasture. At least one gate was found open after the collision, but the trial court suggested that the opening of the gate might have been the act of vandals.

Clearly, the trial court believed the witnesses who testified that they had closed the gates and, hence, concluded that there was no negligence attributable to the owners. However, it was the function of the jury to determine whether or not they believed any particular witness, and they are not obligated to believe any testimony even though there be no contradiction or impeachment of the witness. Day v. Frazer (1962),59 Wash.2d 659, 369 P.2d 859; Pritchett v. City of Seattle (1959), 53 Wash.2d 521, 335 P.2d 31; Rettinger v. Bresnahan (1953), 42 Wash.2d 631, 257 P.2d 633; McUne v. Fuqua (1953), 42 Wash.2d 65, 253 P.2d 632. Flesch v. Schlue (1922), 194 Iowa 1200, 191 N.W. 63 (quite close to the present case on its facts).

This case should have gone to the jury. The trial court must be reversed and a new trial granted, because the trial court usurped the function of the jury of determining whether or not the defendants were negligent.

It may be that this is all we should determine at this time, but the trial court's statement quoted above indicates a misconception of the law as to what a plaintiff must prove to establish a prima facie case under such circumstances.

The trial court indicated that the case should have been dismissed at the conclusion of the plaintiffs' evidence. The plaintiffs had proved the time and circumstances of the collision with the defendants' cattle; that it had occurred on a public highway in a stock restricted district, and the extent of the damages sustained. The trial court apparently believed that the plaintiffs were obligated to offer some further proof of negligence on the part of the defendants.

We are not concerned with any question of liability without fault. The presence of the defendants' livestock on the highway was sufficient to raise a permissible inference of negligence which would take the plaintiffs' case to the jury, and the burden was then on the defendants to go forward with any evidence that they might have in explanation of the presence of their livestock on the highway and to establish that ordinary and reasonable care had been exercised, under the circumstances, to prevent the livestock getting on the highway. Whether the evidence they offered for that purpose was sufficient to satisfy a jury, only the jury could decide.

In this holding, we are supported by the weight of authority. ³ See Anderson v. I. M. Jameson Corp. (1936), 7 Cal.2d 60, 59 P.2d 962; Kenney v. Antonetti (1931), 211 Cal. 336, 295 P. 341; (California now has a statute which says there must be no inference of negligence on the part of the owner of livestock hit on the highway.) Porier v. Spivey (1958), 97 Ga.App. 209, 102 S.E.2d 706; O'Connor v. Black (1958), 80 Idaho 96, 326 P.2d 376; Shepard v. Smith (1953), 74 Idaho 459, 263 P.2d 985; Fugett v. Murray (1941), 311 Ill.App. 323, 35 N.E.2d 946; Guay v. Neel (1950), 340 Ill.App. 111, 91 N.E.2d 151; Ritchie v. Schaefer (1963), 254 Iowa 1107, 120 N.W.2d 444; Hansen v. Kemmish (1926), 201 Iowa 1008, 208 N.W. 277, 45 A.L.R. 498; Ellington v. Strader (Ky.1955), 285 S.W.2d 497; Keefer v. Hartzler (1961 Kansas City), Mo.App., 351 S.W.2d 479; King v. Furry (1958 St. Louis), Mo.App., 317 S.W.2d 690; Moss v. Bonne Terre Farming & Cattle Co. (1928), 222 Mo.App. 808, 10 S.W.2d 338; Doherty v. Sweetser (1894), 82 Hun. 556, 31 N.Y.S. 649; Bender v. Welsh (1942), 344 Pa. 392, 25 A.2d 182; Tassoni v. LeBoutillier (1938), 130 Pa.Super. 303, 196 A. 534.

A frequently quoted statement from Kenney v. Antonetti, supra, states the reasoning of the courts as to why there is a permissible inference of negligence from the presence of unattended livestock on a highway:

'Under any but exceptional circumstances, the exercise of ordinary care will serve to keep unattended animals in their proper inclosures. In these days of rapid automobile transportation, the extreme hazard to drivers and passengers of animals straying unattended on the roads at night cannot be overestimated. The driver is placed in a well-nigh helpless position because of the tendency of an animal to spring out of the darkness in front of a car when blinded or hypnotized by its headlights. Against this contingency, drivers should be protected, by having our roads clear of such obstructions, and every owner of livestock should make an earnest endeavor to so control their movements with due care that the lives of others may not be thereby endangered.' (211 Cal. p. 340, 295 P. p. 342)

What the California court said, in 1931, takes on increased significance 33 years later.

Even before the days of the automobile, it was recognized that the presence of unattended livestock on the street placed the burden of explanation on the owner and not on the injured party, it being said in Doherty v. Sweetser, supra.

'* * * the fact that this horse was in the street unattended called upon the defendant to make some explanation as to how he got there. It would certainly be placing upon the plaintiff a burden which is entirely foreign to the ordinary rules of law to compel him to go into this yard from which this horse escaped and prove what was done there in reference to its management,--facts which are peculiarly within the knowledge of the defendant, and which, if there has been no negligence, he will have no difficulty in showing. * * *' 31 N.Y.S. 649, 650.

This idea was reiterated, more than 60 years later, in Ellington v. Strader, supra,

'After the plaintiffs established that the accident happened and offered proof that the defendant owned the guilty cow, it seems to us that it would not be unreasonable to require the owner of the cow, who had peculiar means of access to the facts as to how the cow got out, to make those facts known to the court. Such procedure is much more logical and sensible than to require the plaintiffs to offer proof as to how the cow escaped. * * *' 285 S.W.2d 497, 498.

There remains for consideration the contention of the plaintiffs that, under the terms of our Motor Vehicle Act as set forth in RCW 16.24.070, the presence of the cattle of the defendants on a public highway within a stock restricted area, constituted negligence per se; and that proof of the exercise of reasonable care by the defendants would avail them nothing.

They cite cases from three states ⁴ and the Province of Ontario. The latter case (Direct Transport Co. v. Cornell (1938), 3 D.L.R. 456), squarely supports their contention. We have satisfied ourselves that not one of the states which has held that the presence of unattended livestock on a highway in a stock restricted area constitutes negligence...