Summary
In Hagger v. Self, 254 Miss. 508, 183 So.2d 175 (1966), the Court addressed a case factually similar to the case sub judice.
Summary of this case from Carpenter v. NobileOpinion
No. 43807.
February 14, 1966.
1. Motor vehicles — collision — bull at large on state highway — prima facie case.
Evidence of truck owner, who sought to recover damages from owners of bull for damage to truck which collided with bull on highway, that collision took place on state-designated highway established prima facie case of liability under statute. Sec. 4876-05, Code 1942.
2. Motor vehicles — same — same — owners of bull proved no negligence on their part.
Evidence of owners of bull, who were sued by owner of truck for damage to truck as result of collision with bull on highway, that bull escaped from pasture by putting his head under lower strand of barbed wire and pushing fence consisting of new white oak posts with four strands of barbed wire from ground and thus making its escape, sustained burden of owners of bull to prove lack of negligence on their part. Sec. 4876-05, Code 1942.
Headnotes as approved by Gillespie, P.J.
APPEAL from the Circuit Court of Holmes County; ARTHUR B. CLARK, JR., J.
J.A. White, Durant, for appellant.
I. Prior to the enactment of Chap. 140, Laws of 1956, the Mississippi rule, even under the provisions of Chap. 200, Laws of 1948, required proof of negligence to support a recovery for vehicular accidents resulting from the presence of livestock upon the highway. Pongetti v. Spraggins, 215 Miss. 397, 61 So.2d 158; Anno. 34 A.L.R. 2d 1277.
II. This rule was abrogated, however, by Chap. 140, Laws of 1956, codified as Sections 4876-01 to 4876-09, Mississippi Code of 1942. The burden of proof was placed upon the owners to prove their lack of negligence in such cases.
III. The statutes ascribe negligence to the appellees by the mere presence of the bull on a state-designated, paved highway as a matter of law and impose liability therefor unless the appellees are able affirmatively, by a preponderance of the evidence, to prove their lack of negligence. National Dairy Products Co. v. Jumper, 241 Miss. 339, 130 So.2d 922.
King King, Durant, for appellees.
I. The burden is on the owner of livestock to prove lack of negligence when same is found on state-designated, paved highway, and the owner must respond in damages if the animal was on the highway through owner's negligence. Sec. 4876-05, Code 1942.
II. Negligence is defined as the failure to observe for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstance justly demands, whereby such other person suffers injury. Clark v. Gilmore, 213 Miss. 590, 57 So.2d 328.
III. The statute in question, although placing the burden of proof of lack of negligence upon appellee, certainly does not create a case of "negligence per se", resulting in absolute liability by the presence of one's animal on a state-designated, paved highway. It is respectfully urged by appellees that the statute places a case arising thereunder clearly akin to the doctrine of res ipsa loquitur. 38 Am. Jur., Negligence, Sec. 298 p. 994.
The suit was filed by Fred Hagger, plaintiff below and appellant here, against J.W. Self and others for the recovery of damages done plaintiff's truck in a collision between said truck and a bull owned by defendant, J.W. Self, on a state-designated, paved highway. The jury found for defendants. We affirm.
The principal question in this case is whether defendants met the burden of proving lack of negligence on their part.
Appellant offered proof that his truck was damaged as a result of a collision between the truck and a bull belonging to defendants, and that the collision took place on a state-designated, paved highway.
(Hn 1) The proof established a prima facie case of liability under the provisions of Mississippi Code Annotated section 4876-05 (1957), which provides that:
The owners of livestock which through their owner's negligence are found on federal or state designated paved highways or highway right-of-ways shall be subject to any damages as a result of wrecks, loss of life or bodily injury as a result of said livestock being on the above designated highways. The burden shall be on the owner of any such livestock to prove lack of negligence.
To meet the burden placed upon them by the foregoing statute, defendants offered testimony that the land immediately adjacent to the highway where the accident took place was leased by one of the defendants, and was planted in corn. There was no fence between the corn field and the highway. The bull was last seen within about an hour of the time of the accident in a feed lot, which was connected to a pasture by an open gate, so that the bull could go from the feed lot to the pasture. The fence surrounding the pasture, and particularly that between the pasture and the corn field, had been repaired about four months before the accident, by placement of some new white oak posts and some new wire. The proof showed that, as repaired, the fence consisted of four strands of barbed wire stretched tight, and was capable of holding cattle under normal conditions. At the place where the bull escaped from the pasture, the fence consisted of new white oak posts with four strands of barbed wire. The bull had put his head under the lower strand, and had pushed the fence from the ground, and thus made his escape. The bull had never been known to escape, except one time when he was engaged in a fight with a neighboring bull.
(Hn 2) The case went to the jury on proper instructions, and we are of the opinion that the jury was justified in finding that the defendants met the burden of proving lack of negligence on their part. It is argued that the verdict was against the overwhelming weight of the evidence, but with this, we cannot agree.
It is also contended that the court erred in granting a peremptory instruction for one of the defendants, Mrs. R.H. Self.
We are of the opinion that there is no merit to the contention, for there is no proof whatever that Mrs. Self had any interest in the bull, and the proof was positive that she did not have any such interest.
There was no reversible error, and the case is therefore affirmed.
Affirmed.
Rodgers, Brady, Inzer, and Smith, JJ., concur.