Opinion
No. 15550
Decided May 14, 1969.
Animals — Black steer on public highway at night — Damages resulting therefrom to person lawfully on highway — Owner's liability — Contributory negligence not available defense.
The owner of a black steer which is upon a public highway at night is strictly liable for any damages occasioned by its presence on the highway to the person or property of one lawfully present thereon.
Messrs. Hogue, Dwyer Gretick and Mr. Richard B. McQuade, Jr., for plaintiff.
Messrs. Brady, Whitehead, Simmons, Metzger Hamilton, for defendant.
Based upon the pleadings on file at the time of submission of plaintiff's motion for summary judgment, and pursuant to defendant's request, the court makes the following findings of fact:
FINDINGS OF FACT
1. The defendant, Carmen M. Dean, administratrix of the estate of Harold W. Dean, deceased, is the duly appointed and acting administratrix of the estate of Harold W. Dean, deceased, having been appointed on the 10th day of May, 1967, by the Probate Court of Fulton County, Ohio.
2. The plaintiff submitted the claim upon which this cause of action is based to Carmen M. Dean, administratrix, within four months of the date of her appointment, and such claim was rejected by her.
3. Fulton County Road 26-2 is a duly dedicated public thoroughfare running in a generally north-south direction in Fulton County, Ohio, and said road passes in front of the farm owned by defendant's decedent.
4. On the 28th day of November, 1966, defendant's decedent was the owner of a black angus steer, and further that about 8:00 o'clock p. m. on that day, the black angus steer was upon the Fulton County Road 26-2.
5. On the 28th day of November, 1966, at about 8:00 o'clock p. m., the plaintiff, Dr. Raymond R. Burrowes, was driving a 1967 Chevrolet van automobile in a southerly direction on Fulton County Road 26-2, and collided with the black angus steer owned by defendant's decedent.
6. The black angus steer's presence upon Fulton County Road 26-2 was a proximate cause of the collision.
CONCLUSIONS OF LAW
1. The right of the public to the use of a highway for travel purposes is absolute as opposed to the use of said highway as pasture for cattle.
2. The owner of a black angus steer, which for some unexplained reason is upon a public highway in the night season, is strictly liable for any damages or injury, occasioned by the presence of said steer upon said highway, to the person or property of one lawfully present on said highway.
3. Such an animal, having no lawful right to be on said highway under such circumstances, is a trespasser.
4. It is not incumbent upon the injured party to plead or prove how the steer came to be upon the highway.
5. The liability of the owner of the steer being strict, he may not avail himself of the defense of contributory negligence.