Soran v. Schoessler
| Decision Date | 17 July 1964 |
| Docket Number | No. 9389,9389 |
| Citation | 394 P.2d 160,87 Idaho 425 |
| Parties | Robert J. SORAN, Plaintiff-Respondent, v. Carl SCHOESSLER, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Harry B. Turner, Twin Falls, for appellant.
Murphy, Schwartz & Cunningham, Twin Falls, for respondent.
Appellant (defendant) has appealed from a judgment rendered in favor of respondent (plaintiff) for damages to respondent's automobile resulting from collision on a public highway with a yearling heifer calf owned by appellant.
Respondent in his complaint alleges that while driving his automobile at about 6:00 o'clock p. m., October 20, 1961, on a public highway appellant's heifer calf suddenly ran in front of and collided with respondent's automobile causing it to be damaged; and that the collision and damage were the direct and proximate result of appellant's negligence in allowing the calf to be on a public highway at night and in failing to keep his cattle in a properly fenced enclosure.
Appellant denied the allegations of damage and negligence; by affirmative defenses he alleged contributory negligence on the part of respondent and that respondent had the last clear chance to avoid the accident.
Appellant, by his assignments of error, questions the sufficiency of the evidence to support the trial court's findings, conclusions and judgment. The assignments require a review of the evidence.
On October 20, 1961, respondent, with his family, was driving his automobile in an easterly direction on an improved county highway known as the Base Line Road toward Gannett, in Blaine County, Idaho, when he suddenly observed an unattended calf crossing the highway some 10 to 20 feet in front of him. Driving at a speed of 40 to 45 miles per hour, respondent applied his car brakes but was unable to avoid colliding with the animal. The accident occurred between 5:00 and 6:00 o'clock p. m., at approximately dusk; the weather was overcast and a light rain was falling. Respondent had his car lights turned on.
The calf, owned by appellant, had been pastured on appellant's 120-acre tract of pasture land extending east and west along the south side of the Base Line Road, enclosed by a fence, partly of woven wire and partly of barbed wire strands; the fence varied in height from 36 to 46 inches. This land was neither open range, I.C. § 25-2118, nor located in an area designated as a herd district, I.C. § 25-2401 et seq.
May 15, 1963, after a trial without a jury the court rendered judgment in favor of respondent for $650.61 as damages to his automobile. The trial court found in effect (1) that the accident occurred in a farming locale with fields on either side of the highway enclosed by fences; (2) that 'At one time' the heifer calf involved in the accident was pastured on appellant's land; (3) that the fence maintained by appellant was between '32 and 46 inches high and did not contain stays'; (4) that 'The fence posts were not set substantially in the ground and were rotted at the ground causing many posts to lean perceptibly.' The court then concluded:
'The defendant [appellant] failed to act as a reasonable and prudent person with respect to the maintenance of his pasture fence and in allowing his livestock to be on a public highway when sight severely was impaired by the lack of light and rain and is guilty of negligence.'
Appellant assigns as error the finding that 'At one time' his heifer calf involved in the accident was on the fenced pasture land maintained by appellant. Such finding is based upon the undisputed testimony of a Mr. Beecher who was looking after appellant's stock at the time the accident occurred; he testified:
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Such assignment is without merit.
Appellant assigns as error the finding that the pasture fence was between 32 and 46 inches high; but he does not question the additional finding that the fence did not contain stays. The finding differs somewhat with the evidence as to the varying height of the fence, in that the evidence is to the effect that the fence was between 3 1/2 to 4 feet high. The variance is harmless inasmuch as the important issue to be resolved is not in determining the height of the fence but its condition. See generally I.C. §§ 35-101 and 35-102.
Appellant next assigns as error the finding that 'The fence posts were not set substantially in the ground and were rotted at the ground causing many posts to lean perceptibly.' The testimony of respondent and appellant, when taken together, amply supports this finding. Respondent (referring to appellant's pasture fence to the north of the highway from the point of collision) testified:
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Appellant's testimony, on cross-examination, relating to this pasture fence, is as follows:
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The evidence thus adduced is sufficient to support the trial court's finding that, at the time of the accident, the fence, owned and maintained by appellant to enclose his cattle, was in a state of disrepair; also sufficient to show that it failed to conform to the standards prescribed by I.C. §§ 35-101 and 35-102 for lawful fences.
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Griffith v. Schmidt, 15617
...supra; Whitt v. Jarnagin, 91 Idaho 181, 418 P.2d 278 (1966); Corthell v. Pearson, 88 Idaho 295, 399 P.2d 266 (1965); Soran v. Schoessler, 87 Idaho 425, 394 P.2d 160 (1964); O'Connor v. Black, 80 Idaho 96, 326 P.2d 376 (1958); Shepard v. Smith, 74 Idaho 459, 263 P.2d 985 (1953). See also Mag......
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...his cattle fenced in because this was not an open range area, and was an area of enclosed lands. See, I.C. 25-2118 and Soran v. Schoessler, ((87) Idaho (425)) 394 P.2d 160. I The trial court reasoned that Maguire had no duty to fence Yanke's cattle off his property, since it bordered on a c......
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...be disturbed if based upon competent, substantial evidence. Nichols v. Knowles, 87 Idaho 550, 394 P.2d 630 (1964); Soran v. Schoessler, 87 Idaho 425, 394 P.2d 160 (1964); Clayton v. Clayton, 81 Idaho 416, 345 P.2d 719 (1959). Appellant however urges the rule that the appellate court is not ......
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