Wright v. Shedd

Citation122 Vt. 475,177 A.2d 240
Decision Date02 January 1962
Docket NumberNo. 275,275
PartiesRaymond W. WRIGHT, Phyllis P. Wright v. John SHEDD, Juanita Shedd, United Farmers of New England, Trustee.
CourtUnited States State Supreme Court of Vermont

Reginald T. Abare, Barre, for plaintiffs.

John A. Swainbank, St. Johnsbury, for defendants.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

HOLDEN, Justice.

An automobile owned by the plaintiffs was substantially damaged when the operator sought to avoid collision with the defendants' horse. The horse was wandering at large on a public highway at night. The trial court granted the defendants' motion, for a directed verdict at the close of the plaintiffs' case. With this disposition of the issue of liability, the question of contributory negligence was never reached. The plaintiffs appeal.

The accident happened in Fairfax at about nine-thirty on the evening of December 2, 1960 as the plaintiffs were traveling south on state highway #104 in a 1957 Dodge station wagon that was operated by their son. The car had rounded a slight curve and was about to meet a car approaching them from the opposite direction. Just as the vehicles had passed, two horses appeared in the roadway ahead. One horse stood directly across the southbound lane of travel. The operator turned suddenly to the left to avoid collision. In swerving to the left, the vehicle had nearly cleared the obstacle but the right rear fender came in contact with the animal's shoulder and chest. The car was thrust further to the left, off the edge of the highway, and rolled over an embankment.

Directly after the accident the defendant John Shedd arrived at the scene. With the aid of the plaintiff and the occupants of another vehicle the defendant rounded up the horses and drove them across the road, into an adjacent pasture on the defendants' farm.

The gate was found open immediately after the accident. It consisted of an unframed section of wire fencing. At one extremity of this section, the truncated ends of the horizontal strands of wire were threaded through the eye of staples, driven into a fence post to accomplish the fastening of the gate. It was about two and one-half feet in height and the fence line no more than twelve feet from the edge of the highway.

Soon after the defendant had reached the site of the accident, the plaintiff Raymond Wright asked him if he owned the horses. The defendant replied he did not--that they belonged to a neighbor. Later Wright asked the defendant to help him locate the owner. The defendant answered that he did not know who owned them. As the two were about to start out to ascertain the owner, the defendant admitted the horses belonged to him, stating he had falsely denied ownership in the first instance because he was 'scared.' Later at a physician's office, where some of the passengers were taken for treatment, the defendant told those present that he felt badly about the accident, and realized that he would have to settle. Later on that evening, the defendant acknowledged liability and told the plaintiff to take the car to a certain shop in St. Johnsbury and have the vehicle repaired and that he would pay for it.

At the time of granting the defendants' motion the trial court explained that there was no evidence to show (1) how the horses came to be on the highway, (2) that the defendants knew or should have known of their presence there, (3) or that they were there in the road through any negligence on the part of the defendants. In reaching this result, the trial court was required to assume the truth of the facts that had been presented at this stage of the trial, for only the jury had the right to pass on the credibility and weight of the testimony. F. I. Somers & Sons, Inc. v. LeClerc, 110 Vt. 408, 411, 8 A.2d 663, 124 A.L.R. 1494. So too, if the evidence given is capable of conflicting inferences, a question develops which the jury must settle upon proper instructions. O'Brien v. Dewey, 120 Vt. 340, 346, 143 A.2d 130; Perkins v. Vt. Hydro-Electric Corp., 106 Vt. 367, 399, 177 A. 631.

Our question is this: Are the facts which appeared unanswered at the conclusion of the plaintiffs' case sufficient to justify men of ordinary reason and fairness in affirming negligence?

We find no error in discharging the defendant Juanita Shedd from liability. Although she was joined as a principal defendant, there is nothing in the evidence to connect her with the ownership, management or control of the horses that were involved in the accident. As to her, the verdict was correctly entered.

The defendant John Shedd stands differently in this dispute. He finally admitted his ownership of the horses. Immediately upon his arrival at the scene he regained control of the animals and turned them through the gate that was found open into the fenced enclosure along the highway at the point where the accident took place.

These facts alone support a reasonable inference that this was the enclosure from which the horses made their way onto the highway. Of course it might be that the horses were stabled or pastured elsewhere. If this was the true fact, it was a matter peculiarly within the defendant's knowledge and reach. Until such evidence was forthcoming to oppose the inference, it was entitled to stand against the defendant. Sargent v. Gagne, 121 Vt. 1, 9, 147 A.2d 892; State v. Teitle, 117 Vt. 190, 211, 90 A.2d 562; Pacific Lumber Agency v. National Aircraft Corp., 108 Vt. 10, 17, 182 A. 192. At this stage of the trial it was clear that the defendant had the responsibility of ownership and control of the horse that precipitated the accident.

Long before the advent of motor vehicles, this Court recognized the danger from the presence of animals, unattended and unrestrained on a public highway at night and indicated that such circumstances might well be the source of liability. See Holden v. Shattuck, (1861) 34 Vt. 336, 343. Under modern traffic conditions the peril to persons lawfully traveling the public thoroughfares by motor vehicle is substantially aggravated and entirely obvious. In consequence, the owner or keeper of livestock capable of doing harm from this source of danger owes a duty of reasonable care to prevent them from wandering unrestrained on the public way. This is consistent with general considerations of tort liability. Bender v. Welsh, 344 Pa. 392, 25 A.2d 182, Howland v. Cressy, 95 N.H. 205, 60 A.2d 128, Corey v. Smith, 233 Ind. 452, 120 N.E.2d 410, 412; Restatement, Torts, § 518(1); 2 C.J.S. Animals §§ 145, 149; 2 Am.Jur. § 60 (cum. pocket supp.); and for a recent collection of cases, see 59 A.L.R.2d 1333.

The defendant urges that the ruling of the trial court is controlled, and must be affirmed on the strength of Dailey v. Lawson, 119 Vt. 82, 119 A.2d 684 and Granger v. Tremblay, 113 Vt. 32, 33, 28 A.2d 696. There is nothing in the scope of these decisions that opposes the general doctrine of tort liability to exculpate the keeper of domestic livestock, of the physical dimensions of a horse, in ignoring...

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10 cases
  • Deveneau v. Wielt
    • United States
    • United States State Supreme Court of Vermont
    • March 4, 2016
    ...this case presents an issue of first impression, our decision in Wright v. Shedd provides a solid foundation for our analysis here. 122 Vt. 475, 177 A.2d 240 (1962). In Wright, a horse owned by Shedd wandered onto a road and was struck by a vehicle driven by plaintiff, resulting in injuries......
  • Doyle v. Exxon Corp.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 10, 1979
    ...(1947); Forcier v. Grand Union Stores, Inc., supra; Dodge v. McArthur, 126 Vt. 81, 84, 223 A.2d 453, 455 (1966); Wright v. Shedd, 122 Vt. 475, 477, 177 A.2d 240, 243 (1962). III Exxon's final contention is that the district court erred in refusing to instruct the jury on the defense of assu......
  • Grubb v. Wolfe
    • United States
    • Supreme Court of New Mexico
    • December 13, 1965
    ...and our present day needs and circumstances. We are impressed with the correctness of the following which we quote from Wright v. Shedd, 122 Vt. 475, 177 A.2d 240, 242: '* * * Under modern traffic conditions the peril to persons lawfully traveling the public thoroughfares by motor vehicle i......
  • Brauner v. Peterson
    • United States
    • Court of Appeals of Washington
    • December 15, 1976
    ...creates a permissible inference that the owner was negligent; Vaclavicek v. Olejarz, 61 N.J. 581, 297 A.2d 3 (1972); Wright v. Shedd, 122 Vt. 475, 177 A.2d 240 (1962); Ritchie v. Schaefer, 254 Iowa 1107, 120 N.W.2d 444 (1963); (2) the rule of res ipsa loquitur allows the trier of fact to in......
  • Request a trial to view additional results

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