Summary
holding that sufficient evidence existed to submit the case to the jury when the defendant's ponies escaped from a fenced-in area and ran onto the highway and that after the accident, the owner discovered the gate open and a wire used to secure the gate missing
Summary of this case from Ellis v. MillerOpinion
No. 73-584
Decided June 26, 1974.
Animals — Owner responsible for negligent keeping — Negligence of owner or custodian a jury question, when — Pony on highway damaging colliding vehicle.
1. The owner of a domestic animal is responsible for negligence in its keeping whereby damage is occasioned. ( Drew v. Gross, 112 Ohio St. 485, and Barber v. Krieg, 172 Ohio St. 433, approved and followed.)
2. Where a pony strays onto a highway and causes damage to an occupant of a vehicle which collides with the pony, and there is evidence that the owner or custodian of the pony failed to properly maintain the animal's enclosure, a jury question is presented as to the negligence of the owner or custodian.
APPEAL from the Court of Appeals for Knox County.
Plaintiffs-appellants, Merle Snow and his spouse Janet Snow, instituted an action in the Court of Common Pleas of Knox County to recover damages against William G. Courtright and Producers Livestock Association. In their amended complaint, plaintiffs allege "that on the 9th day of April, 1969, on U.S. Highway 36, approximately 2 miles south of Mount Vernon in Knox County, a pony owned by the defendant William G. Courtright and housed by the defendant, Producers Livestock Association, was permitted by said defendants to enter upon said highway and leap into the path of plaintiffs' automobile, causing the plaintiffs * * * serious, permanent and disabling injury and damages."
At the trial, evidence was introduced that Courtright was the manager of Producers Livestock Association of Mount Vernon; that two ponies, which were used occasionally to drive livestock, were kept in a fenced area within Producers Livestock property; and that both ponies were on the highway the night of the collision. The evidence also revealed that Producers Livestock employed a nightman, and that after the accident Courtright and the nightman discovered that the gate to the enclosure where the ponies were kept was open. The latch on the gate was in an open position, and a wire customarily used to secure the gate was gone.
The testimony disclosed further that a trucking company had made a delivery of stock prior to the accident and that the nightman had not checked the gate thereafter.
At the conclusion of all the evidence, the court overruled a defense motion for a directed verdict and submitted the cause to the jury. The jury found in favor of plaintiffs against defendant Producers Livestock Association, fixing damages at $55,000, and judgment was entered upon the verdict. Thereafter, the court dismissed the complaint against Courtright, with prejudice.
Upon appeal, the Court of Appeals, with one judge dissenting, reversed the judgment of the Court of Common Pleas and rendered final judgment in favor of appellee.
In its opinion, the Court of Appeals expressed its reasons for reversal, as follows:
"There was evidence in the record from which the jury was permitted to infer that the defendant was negligent either in the character of the fastening which it provided for a gate to an enclosure in which the offending pony and another pony were kept or in permitting that gate to be left open by either its agents or invitees. However, there was no direct evidence whatsoever in the record that the pony escaped through that gate and no evidence of the character and condition of the fences around the enclosure or of any inability of the pony to otherwise penetrate or surmount same to preclude some route of escape not attributable to the negligence of defendant.
"Thus, there was an inference that the defendant was negligent in the manner in which the gate was maintained but no additional fact or facts to support an inference that the offending pony escaped through the gate and that the defendant's negligence was thus the proximate cause of plaintiff's injuries. Without an additional fact or facts in evidence to support the inference that the pony escaped through the gate in question we have an impermissible inference upon an inference and the court committed prejudicial error in overruling the defendant's motion for a directed verdict and in submitting the case to the jury. Sobolovitz v. The Lubric Oil Co., 107 Ohio St. 204, and Hurt v. Charles J. Rogers Transportation Co., 164 Ohio St. 329."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Spangenberg, Shibley, Traci Lancione, Mr. Donald P. Traci and Mr. John D. Liber, for appellants.
Messrs. Williams, Murray, Deeg Ketcham, Mr. Gordon E. Williams and Mr. James D. Booker, for appellee.
The propositions of law set forth in appellants' brief propound two theories for the imposition of liability upon appellee. First, it is contended that violation of R.C. 951.02, in itself, should constitute negligence per se; second, it is contended that, on the facts presented, there was sufficient evidence to support the jury's finding.
Since the court agrees with appellants' second contention that the evidence adduced at trial was sufficient to warrant submission of the case to the jury, it is not necessary for it to consider this court's interpretation that R.C. 951.02 is "for the purpose of preventing trespass and not * * * for the benefit of highway travelers." Barber v. Krieg (1961), 172 Ohio St. 433, 435, 178 N.E.2d 170; Marsh v. Koons (1908), 78 Ohio St. 68, 84 N.E. 599.
Plaintiff in the Barber case was injured as the result of a collision between an automobile and a hog which ran upon the highway. In the opinion in that case, by Matthias, J., it was stated, at page 436:
"* * * if plaintiff can prove as alleged that the defendant failed to erect or maintain the fences, and that such failure was the proximate cause of plaintiff's injuries, then plaintiff has an action which under sufficient proof could go before a jury."
The court in the Barber case followed Drew v. Gross (1925), 112 Ohio St. 485, 147 N.E. 757. The syllabus in Drew reads:
"1. The owner of a domestic animal is responsible for negligence in its keeping whereby damage is occasioned.
"2. It is a question of fact for the jury whether an owner of horses who turns them loose unattended into a field adjacent to a much traveled highway in the nighttime, the fence of which field is in such defective condition that the horses may easily stray out onto the highway, could have anticipated that one of the horses would stray out onto the highway and collide with an automobile thereon."
In the course of the opinion, Allen, J., made the following comments, at pages 489 and 490:
"* * * The principal test, as to whether the owner is or is not negligent, is whether he could or could not reasonably have anticipated the occurrence which resulted in the injury. It is a question of fact for the jury whether an owner of horses who turns them loose unattended into a field adjacent to a much-traveled highway in the nighttime, the fence of which field is in such defective condition that the horses may easily stray out onto the highway, could have anticipated that one of the horses would stray out onto the highway and collide with an automobile thereon.
"The owner of livestock is chargeable with knowledge of the propensities of his livestock and is bound to know that horses or cattle when placed in an inclosure where the fence is so defective that they may easily pass out of the inclosure and onto adjacent property will probably do so."
In the instant cause, there is no evidence of record that the pony's escape from its enclosure was attributable to faulty fencing. There is, however, evidence that a gate in the fence was open.
The Court of Appeals was of the opinion that "without an additional fact or facts in evidence to support the inference that the pony escaped through the gate in question we have an impermissible inference upon an inference * * *."
The court, in Drew v. Gross, supra, made no such distinction. In that case, there was no direct evidence that the horse escaped because of the defective condition of the fence. Yet the court found it to be "some evidence of negligence to turn horses into a field adjacent to the highway in the nighttime, if the fence be in such defective condition that the animals may easily stray out onto the highway." ( 112 Ohio St., at 490.)
Thus, in Drew v. Gross, defendant's negligence was held to be a question for determination by the jury. The same result should obtain here. Since it is "some evidence of negligence" to turn animals into a field with defective fencing, it is also evidence of negligence to leave open a gate to the animals' enclosure.
It is the conclusion of this court that the Court of Common Pleas properly submitted the issue of defendants' negligence to the jury. Therefore, the judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is affirmed.
Judgment reversed.
HERBERT, CORRIGAN, CELEBREZZE and P. BROWN, JJ., concur.
W. BROWN, J., concurs in paragraph one of the syllabus and in the judgment.
STERN, J., dissents.
In its opinion, the majority states that: "Since it is `some evidence of negligence' to turn animals into a field with defective fencing, it is also evidence of negligence to leave open a gate to the animals' enclosure." There is one major fault with that comparison — the record in the instant case is devoid of any evidence, direct or circumstantial, as to who was responsible for the gate to appellee's enclosure being open.
Unless this court is prepared to infer that appellee was negligent as a matter of law solely by virtue of the fact that the gate was open, I find the syllabus in Gedra v. Dallmer Co. (1950), 153 Ohio St. 258, 91 N.E.2d 256, to be controlling. Since the appellants have failed to show that the ponies escaped because of some breach, by appellee, of his duty of due care, I would affirm the judgment of the Court of Appeals.