Summers v. Parker

SCOTT (Robert H.), J. pro tem.

Defendant appeals from an adverse judgment in a personal injury action.

At about 7 :30 o ’clock on a Sunday evening in April, 1951, plaintiffs were riding in an automobile driven by their son, going west on California State Highway No. 118, toward the town of Santa Susana in Ventura County. Their car collided with a steer lying in the highway, causing injuries to plaintiff, Mrs. Summers. The steer was the property of defendant and had escaped from defendant’s ranch where it had been placed for pasturage and it had reached the highway. This ranch had a frontage of one-half mile on the south side of the highway.

In their complaint plaintiffs alleged, and the trial court found, that it was defendant’s negligence that allowed the steer to get out onto the highway. The court further found that defendant’s negligence was the sole proximate cause of the collision and of the injuries to plaintiff.

On this appeal two questions are presented which require consideration: (1) Whether the evidence was sufficient to support a finding of negligence which was the proximate cause of plaintiff’s injury; (2) Whether, as charged by de

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fendant, the judge of the trial court “failed to keep an open mind until all of the evidence was in, but on the contrary prejudged the case upon hearing only respondents’ (plaintiffs’) evidence.”

Both sides agree that the doctrine of res ipsa loquitur is excluded in a case such as this by reason of the provisions of section 423, Agricultural Code. But a cattle owner who

negligently

fails to keep his cattle from straying upon a highway may be held liable in a civil action for damages arising from a collision with his livestock even at a point where the highway is unfenced, in open range country.

(Jackson

v.

Hardy,

70 Cal.App.2d 6, 14 [160 P.2d 161]; Civ. Code, §1714.)

Defendant’s land was fenced next to the highway. Wires were loose and hanging free from the poles and some posts were rotted and partly burned through; four or five posts rested on the surface of the ground and were not imbedded therein; the fence was about 3 feet high in some places. It had a gate which had been left open during the afternoon prior to the accident. Defendant had a “tenant” on the land who apparently looked after defendant’s cattle at least to the extent of keeping the gate closed, and of notifying defendant when the cattle got out.