Pepper v. Bishop

DRAPER, J.

Plaintiff brought this action to recover damages for injuries sustained by him when his automobile struck a horse owned by defendant. Jury verdict was for defendant. Plaintiff appeals from the ensuing judgment.

Defendant owns and operates a thoroughbred breeding farm which fronts on the north side of the Salinas-Monterey highway. A fence 8 to 10 feet high borders the roadway along defendant’s property and surrounds the entire farm. There is also a fence along the south side of the road. Within defendant’s outer fence was a 30-acre field, also fenced, in which a number of mares were kept.

At about 10 o ’clock at night, plaintiff drove along the highway past defendant’s farm at about 50 miles per hour. He saw several horses on the highway 100 to 150 feet in front of his car. Plaintiff testified that he immediately applied his

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brakes as hard as he could, slowed his car substantially but was unable to avoid striking one or more of the horses. He brought his ear to a stop about 10 feet after impact. Plaintiff was thrown against the steering wheel and suffered injuries. A highway patrolman testified that no skid marks were left by plaintiff’s car.

The horses were defendant’s. It developed that they were four mares which had escaped from the 30-acre field. The bolt and chain which secured the gate to that field were broken in such a way as to indicate that the horses had caused the breaks. There was evidence that the gate through the main fence to the highway was open shortly after the accident, but no evidence as to how it had been opened.

The court on its own motion read to the jury section 423 of the Agricultural Code. Plaintiff makes no objection to the reading of the first part of the section, which provides that no person owning livestock shall permit such animals to stray upon a public highway, both sides of which are adjoined by fences. In fact, plaintiff himself requested an instruction upon this portion of the section. He asserts, however, that it was error to read to the jury the final sentence of the section, which reads in material part:

“In any civil action brought by the owner, driver or occupant of a motor vehicle . . . for damages caused by collision between any motor vehicle and any domestic animal or animals on a highway, there is no presumption or inference that such collision was due to negligence on behalf of the owner or the person in possession of such live stock. ’ ’