Kelly v. Willis , 238 N.C. 637 ( 1953 )

78 S.E.2d 711 (1953) 238 N.C. 637

KELLY
v.
WILLIS.

No. 311.

Supreme Court of North Carolina.

November 25, 1953.

C. R. Wheatly, Jr., Beaufort, for plaintiff, appellant.

Luther Hamilton and Luther Hamilton, Jr., Morehead City, for defendant, appellee.

ERVIN, Justice.

The appeal is concerned solely with the propriety of the compulsory nonsuit.

The statute codified as G.S. § 68-23 provides that "if any person shall allow his livestock to run at large within the limits of any county, township or district in which a stock law prevails or shall prevail pursuant to law, he shall be guilty of a misdemeanor, and fined not exceeding fifty dollars or imprisoned not exceeding thirty days." This enactment is clearly applicable to this case because the events culminating in this litigation undoubtedly occurred in territory covered by the stock law. G.S. § 68-39.

The statute under scrutiny expressly subjects the owner of livestock to criminal responsibility as a misdemeanant if he knowingly allows his livestock to run at large in stock-law territory. State v. Brigman, 94 N.C. 888; Sharp v. State, 25 Ala.App. 491, 149 So. 355; 3 C.J.S., Animals, § 141. It impliedly subjects the owner of livestock to civil responsibility as a tort feasor if he knowingly or negligently permits his livestock to roam at large in stock-law territory, and in that way proximately causes injury to the person or property of another. Gardner v. Black, 217 N.C. 573, 9 S.E.2d 10. Moreover, the common law, acting independently of this or any other legislative enactment, imposes upon the owner of livestock civil responsibility as a tort feasor if he knowingly or negligently suffers his livestock to be at large on a highway, and in that way proximately causes injury to the person or property of a user of the highway. Bethune v. Bridges, 228 N.C. 623, 624, 46 S.E.2d 711; Gardner v. Black, supra; Lloyd v. Bowen, 170 N.C. 216, 86 S.E. 797; Rice v. Turner, 191 Va. 601, 62 S.E.2d 24; Smith v. Whitlock, 124 W.Va. 224, 19 S.E.2d 617, 140 A.L.R. 737; 2 Am.Jur., Animals, section 60.

The plaintiff did not offer any direct evidence tending to show that the defendant knowingly or negligently allowed his mule to run at large on the highway. He was not required to do so. It was permissible for him to produce circumstantial evidence sufficient to establish this crucial fact. Wyrick v. Ballard & Ballard Co., Inc., 224 N.C. 301, 29 S.E.2d 900; Corum v. R. J. Reynolds Tobacco Co., 205 N.C. 213, 171 S.E. 78; Lynch v. Carolina Telephone & Telegraph Co., 204 N.C. 252, 167 S.E. 847.

According to the evidence, the collision between the plaintiff's truck and the defendant's mule marked the fourth occasion within a fortnight on which the mule wandered, unattended, uncontrolled, and unrestrained in proximity to the highway half a mile from the defendant's farm. When this evidence is interpreted in the light most favorable to the plaintiff, it is ample to support the inference that the mule was at large on the highway at the moment of the collision simply because the defendant knowingly or negligently allowed it to be there. The other evidence is sufficient to sustain the additional inference that the wrongful act or the negligent omission of the defendant was the sole proximate cause of the collision and the resultant damage to the truck.

It necessarily follows that the entry of the compulsory nonsuit constituted error regardless of whether the court acted on the theory that the evidence was inadequate to show legal culpability on the part of the defendant or on the theory that the plaintiff's driver was contributorily negligent as a matter of law.

The facts in this case are unlike those in Bethune v. Bridges, supra, and Gardner v. Black, supra, where the offending animals did not run at large before the events producing the litigation.

The compulsory nonsuit is

Reversed.

WINBORNE, Justice (dissenting).

I am unable to agree with the majority opinion on this appeal. Taking the evidence in the case in the light most favorable to plaintiff, and giving to him the benefit of every reasonable intendment and every reasonable inference to be drawn therefrom, and applying the rules of law laid down by this Court in the case of Gardner v. Black, 217 N.C. 573, 9 S.E.2d 10 (one member now deceased dissenting), I am of opinion that the judgment of nonsuit entered in Superior Court was, and is proper.

The evidence offered by plaintiff, as shown in the record, as I read it, is as follows: A collision occurred about 11 o'clock on Sunday night, August 12, 1951, between plaintiff's 1946 one-half ton Chevrolet pickup truck, operated with his permission by his 16-year old step-son, Allen Howard Garner, and defendant's mule. It occurred on U. S. Highway No. 70, as the truck was traveling westwardly from Morehead City, N.C., toward Newport, N. C., in the vicinity of a place of business located on the north side of the highway, and known as the "Wagon Wheel".

Allen Howard Garner, as witness for plaintiff, testified: That the pickup truck was equipped with excellent or perfect lights, enabling him to see at least 200 feet down the highway; that the brakes were good,—in perfect condition; that he could drive well and safely; that the traffic was not heavy, and there were no vehicles within one-half mile of him except those meeting him; that he could see almost as well in passing those vehicles as when not passing them; that his speed was under 40 miles per hour, whereas the speed limit was 55 miles per hour; that the mule, black or brown in color, stepped out on the highway ten or fifteen feet directly ahead of the truck, "all at once, walking fast or trotting" from the north or his right side; that he saw the mule "the minute he entered said highway",—"when he first stepped upon the highway"; that he applied his brakes immediately at first seeing the mule; that he could not turn to the left because of an oncoming car; that as he started to slow down he hit the mule; that at that time he was actually on the paved portion of the road; that as result of the impact the accelerator or throttle of motor was jammed and brakes were damaged so that the vehicle could not be stopped immediately, and it moved approximately 150 feet; that the mule was caught up and thrown in the back of the vehicle; and "that the mule's stable was just a short while away".

Plaintiff, as witness for himself, testified, that his truck was in good condition, brakes recently relined, and lights good; that he talked with defendant on Tuesday following the accident, and he, defendant, stated that he had asked the colored fellow to keep him (the mule) shut up; and that in his plaintiff's opinion, while his truck was worth $700 before the accident, it had after the wreck value of only $100.

And Robert Edward Lee, last witness for plaintiff, testified: That defendant's farm is about one mile from his place of business, known as Wagon Wheel; that defendant keeps his livestock approximately one mile from Wagon Wheel, but by direct route it would be about one-half mile; that he was at the scene of the accident, and saw the mule; that he had recognized the mule because he had removed him from his okra patch; that he had seen the mule unattended in the vicinity of his place of business approximately three times in two weeks' period immediately prior to the accident, the first time in his okra patch, and two times thereafter; that this was the same mule, in his opinion, as the one struck by plaintiff's vehicle; that this mule was black or dark gray in color, and was the same mule that was on his place a day or so before; and that he believes it was the same mule.

And in Gardner v. Black, supra, it is said that the liability of the owner of animals for permitting them to escape upon public highways, in case they do damage to travelers or others lawfully thereon, rests upon the question whether the keeper is guilty of negligence in permitting them to escape; that in such case the same rule in regard to what is and what is not negligence obtains as ordinarily in other situations; that it is the legal duty of a person having charge of animals to exercise ordinary care and the foresight of a prudent person in keeping them in restraint; and that even though it be unlawful to permit livestock to run at large, the fact that defendant's mules were running at large upon a public highway is not sufficient in and of itself to establish a prima facie case of negligence on the part of defendant, for the doctrine of res ipsa loquitur does not apply.

These principles are not challenged in the majority opinion.

And applying these principles to the case in hand, the evidence offered by plaintiff as set forth above fails to show, and it is not sufficient to justify and support reasonable inference, that the mule of defendant was at large with his knowledge and consent, or at his will, or that its being at large was due to any negligence on his part. The only evidence in regard thereto, other than the fact that the mule was at large, is the statement of plaintiff that defendant said "that he had asked the colored fellow to keep him (the mule) shut up". This statement negatives any suggestion that defendant negligently allowed or permitted the mule to be at large.

But, in any event, it is manifest from the evidence that the plaintiff's truck was not being operated with due care and caution. The physical facts that "the mule was caught up and thrown in the back of the vehicle", and the truck damaged to the extent plaintiff estimated, speak louder than the witness as to the manner in which the truck was being operated. These facts establish negligence on the part of the operator of the plaintiff's truck as a proximate and contributing cause. Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88.

Hence, I vote to affirm the judgment below.

BARNHILL and DENNY, JJ., concur in dissent.