Stewart v. Wild

• Citation: 195 N.W. 266,196 Iowa 678
• Decision Date: 17 October 1923
• Docket Number: No. 35041.,35041.
• Parties: STEWART v. WILD.
• Court: United States State Supreme Court of Iowa

196 Iowa 678

195 N.W. 266

STEWART

v.WILD.

No. 35041.

Supreme Court of Iowa.

Oct. 17, 1923.

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

Action for damages for personal injuries sustained by plaintiff as a result of alleged negligence of the defendant. These injuries resulted from a collision of plaintiff's automobile, while traveling in the highway, with one of defendant's hogs, which the defendant had negligently permitted to run at large upon the highway. A demurrer to plaintiff's petition was sustained. The plaintiff electing to stand upon her petition, judgment was entered against her, from which she has appealed. Reversed and remanded.

Stevens, J., dissenting.D. H. Sheehan and Kimball, Peterson, Smith & Peterson, all of Council Bluffs, for appellant.

W. H. Killpack, of Council Bluffs, for appellee.

EVANS, J.

The alleged negligence of the defendant is charged in the petition in the following terms:

“That on or about the 30th day of May, 1920, the plaintiff, her husband, and two sons, were driving in the plaintiff's automobile on and along the said White Pole road in an easterly direction. That one of the plaintiff's said sons was driving and operating the plaintiff's husband's said automobile in a cautious and careful manner and at a moderate and lawful rate of speed. That when at a point on said highway adjacent to the land owned and operated by the defendant, some hogs, belonging to defendant, which the said defendant had negligently, carelessly, and unlawfully permitted to stray from (upon) said highway, suddenly jumped out of a depression or sunken road, running at right angles with said highway on the west side of said highway, and ran out upon the traveled part of said highway, directly in the path of the plaintiff's husband's said automobile. That plaintiff and the other occupants of the said car were unaware of the presence of said hogs until they, the said hogs, ran out from the said depression or sunken road directly in the path of his said automobile. That, although the driver of said car, the plaintiff's said son, exerted every effort to avoid a collision with the said hogs, he was unable to do so. That one of defendant's said hogs ran directly under the left front wheel of plaintiff's husband's automobile, causing it, the said automobile, to turn turtle and to throw plaintiff and the other occupants of plaintiff's husband's said automobile violently to the ground.

That at the time of the said collision, the defendant was standing in the barnyard of the said farm, east of the said highway. That just as the plaintiff's husband's automobile reached the point at, or near, said depression or sunken road, the defendant called the said hogs. That the said hogs jumped up and ran out upon the traveled part of the said highway, in the path of the plaintiff's husband's said automobile, in response to the defendant's said call. That defendant knew full well, or should have known, that the said hogs would jump out of the said depression or sunken road in response to his said call, and run out in the traveled part of the highway directly in the path of the said automobile.

That the defendant above named was guilty of negligence and carelessness in connection with the matter of said hogs being upon said public roadway, in that said defendant did fail to restrain said hogs from running at large and did fail to restrain said hogs from going upon public roads for travel or driving, and in that said defendant did fail to keep the said hogs under his immediate care and efficient control, as provided by section 2314 of the Code of Iowa 1897.

That defendant was guilty of carelessness and negligence, in that, in addition to failing to restrain said hogs from going upon a public roadway, he did commit an affirmative act of negligence and carelessness, in that he did call his hogs from the other side of the roadway from where he was located, at a time when automobiles, and particularly when the automobile in which plaintiff was riding, was passing along said roadway, which fact was known to defendant, or, in the exercise of reasonable care, should have been known to defendant, thus causing said hogs to quickly and suddenly run upon and in front of the automobile in which plaintiff was riding, and causing said automobile to turn turtle as hereinbefore stated.”

The demurrer to the foregoing was predicated upon the three following grounds:

“1. It appears from the plaintiff's petition that no negligence on defendant's part, of which plaintiff has a right to complain, was the proximate cause of plaintiff's injury, if any she suffered.

2. Even if the matters and things set forth in plaintiff's petition were true, the fact that some of defendant's hogs were on the public highway, if such were a fact, does not render him liable for automobile accidents or make him an insurer of the safety of persons traveling along the public highway, so far as a collision between a pig and an automobile is concerned.

3. The matters and things set out in plaintiff's petition as negligence or as improper or unlawful acts on the part of defendant are not such matters and things as to enable the plaintiff to base a cause of action thereon against the defendant or to entitle her to recover against him, because the mere escape of hogs from an inclosure is not negligence, and a collision between a hog and an automobile on a public highway is not such a thing as defendant could or would be bound to anticipate, if his hogs should escape from an inclosure on to the public highway.”

The argument of the appellee in support of the foregoing grounds of demurrer is predicated largely upon the twofold assumption: (1) That the action is one for statutory damages under sections 2313 and 2314 of the Code. (2) That 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.

[1] 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. The petition discloses an ordinary action at law for damages for negligence. In such an action, it is always incumbent upon the plaintiff to plead and to prove the alleged negligence. Negligence is the breach of some duty, imposed either by common law or by statute upon the offending party. If the duty be imposed, then a breach of it is actionable, if it result proximately in injury to another; and this is equally true whether the duty be imposed by common law or by statute.

The petition charges two negligences: (1) That the defendant negligently permitted his hogs to run at large upon the highway. (2) That he was affirmatively negligent in calling his hogs under the circumstances existing at the time of such calling.

[2] For the moment we shall ignore the latter charge, and consider only whether the first was a sufficient allegation of negligence. At common law, it was the duty of the defendant to restrain his hogs from running at large. He had the common right of the public to drive them upon the highway while in charge of a caretaker. He had no right to permit them to run upon the highway without a caretaker. This rule of the common law has not been abridged by our statute. On the contrary, it has been expressly confirmed. Section 2314 expressly prohibits the owner of swine from permitting the same to run at large at any time. It also defines the phrase “running at large” as follows:

“But stock shall not be considered as running at large so long as it is upon unimproved lands and under the immediate care and efficient control of the owner, or upon the public roads for travel or driving thereon under like care and control.”

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