Summers v. Parker

• Decision Date: 13 July 1953
• Citation: 119 Cal.App.2d 214,259 P.2d 59
• Court: California Court of Appeals Court of Appeals
• Parties: SUMMERS et al. v. PARKER et al. Civ. 19503.

Page 59

259 P.2d 59

119 Cal.App.2d 214

SUMMERS et al. v. PARKER et al.

Civ. 19503.

District Court of Appeal, Second District, Division 1, California.

July 13, 1953.

George L. Hampton, Van Nuys, for appellant.

Robert E. Friedrich, Santa Paula, Margaret Keller, Ventura, for respondents.

SCOTT, Justice pro tem.

Defendant appeals from an adverse judgment in a personal injury action.

At about 7:30 o'clock on a Sunday evening in April, 1951, plaintiffs were riding in an automobile driven by their son, going west on California State Highway No. 118, toward the town of Santa Susana in Ventura County. Their car collided with a steer lying in the highway, causing injuries to plaintiff, Mrs. Summers. The steer was the property of defendant and had escaped from defendant's ranch where it had been placed for pasturage, and it had reached the highway. This ranch had a frontage of one-half mile on the south side of the highway.

In their complaint plaintiffs alleged, and the trial court found, that it was defendant's negligence that allowed the steer to get out onto the highway. The court further found that defendant's negligence was the sole proximate cause of the collision and of the injuries to plaintiff.

On this appeal two questions are presented which require consideration: (1) Whether the evidence was sufficient to support a finding of negligence which was the proximate cause of plaintiff's injury; (2) Whether, as charged by defendant, the judge of the trial court 'failed to keep an open mind until all of the evidence was in, but on the contrary prejudged the case upon hearing only respondents' (plaintiffs') evidence.'

Both sides agree that the doctrine of res ipsa loquitur is excluded in a case such as this by reason of the provisions of section 423, Agricultural Code. But a cattle owner who negligently fails to keep his cattle from straying upon a highway may be held liable in a civil action for damages arising from a collision with his livestock even at a point where the highway is unfenced, in open range country. Jackson v. Hardy, 70 Cal.App.2d 6, 14, 160 P.2d 161; Sec. 1714, Civil Code.

Defendant's land was fenced next to the highway. Wires were loose and hanging free from the poles and some posts were rotted and partly burned through; four or five posts rested on the surface of the ground and were not imbedded therein; the fence was about three feet high in some places. It had a gate which had been left open during the afternoon prior to the accident. Defendant had a 'tenant' on the land who apparently looked after defendant's cattle at least to the extent of keeping the gate closed, and of notifying defendant when the cattle got out.

In determining whether the fence was adequate the trial court may have considered the definition of a 'good and substantial' wire fence in Sec. 412 of the Agricultural Code, and of a 'lawful fence' described in Sec. 403, Agricultural Code (added by Stat. 1947). One witness for defendant testified concerning defendant's fence:

'Q. You have in your own experience seen cattle jump or leap over a fence of that type, haven't you? A. Oh, yes, any cattle will do that sometimes. They won't make a habit of it.'

Another witness had seen cattle coming through the fence at a place where it was later repaired.

It is defendant's contention that any cattle on the highway got there not through or over any portion of the fence which was inherently inadequate or through the open gate, but through a narrow open space between two posts which were 17 1/4 inches apart and that this space was open because the wire which defendant had placed there to close the opening, had been cut by some stranger. He testified that when he left the property at 3:30 P.M. on the day of the accident the wires were intact but that early the next morning he found them lying on the ground near the posts on which the gate swung; that they looked as if they had been cut with a sharp pair of pliers and that he saw hoof prints of several head of cattle leading to and between the posts.

The steer struck by plaintiffs' automobile weighed 650 to 700 pounds. The court found 'that it is not true that said steer escaped from defendant Harry C. Parker's property and control to the said highway through an opening cut in the wires in said defendant's fence between two posts approximately 17 1/4 inches apart near the gate into and on said property.' It was a question of fact for decision by the trial court whether there was negligence on the part of defendant in having a defective fence or an open gate over or through which the steer found its way onto the highway.

Defendant disclaims responsibility for the open gate because he closed it when he left at 3:30 on the afternoon of the accident. He did not padlock the gate but fastened it with a wooden slide which fitted into a slot cut into the post at the opening end of the gate. Whether he was free from negligence in not providing a more secure fastening for a gate which was so necessary to keep the cattle off the highway was a question for the trier of fact. If the steer left defendant's land over the inadequate fence or through the open gate, if it got out onto the highway due to negligence of defendant and was on the highway because of that negligence when the plaintiffs reached the point of the accident, the latter are entitled to recover without pointing to the exact spot at which the steer escaped from defendant's property.

Supplementing testimony in the case we learn that the trial judge viewed the premises. It was stipulated that he might do so and that he need not state in writing or verbally what he discovered. Defendant's counsel stated:

'Mr. Hampton: So far as we are concerned I don't care about having you write down everything that you saw if you go out and look at it. We have no objection to your looking at it and I don't suppose it even necessary to suggest that it has been a couple of years...