Opinion
June 2, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 712
David M. Bryans, Denver, for plaintiff in error.
Wells & Snydal, E. Ord Wells, Fort Morgan, for defendants in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in the same order as in the trial court and will be referred to as plaintiff and defendants or by name.
Plaintiff's complaint alleged that defendant Robert Hall was careless and negligent in the operation of defendants' pickup truck, resulting in the death of livestock owned by the plaintiff. Defendants' answer denied the alleged careless and negligent acts. Defendants also set forth a counterclaim against the plaintiff for the damages to defendants' truck resulting from the collision with plaintiff's livestock. Trial was to the court and at the conclusion of the evidence, the court entered judgment for defendants on the plaintiff's complaint and judgment for plaintiff on defendants' counterclaim.
Plaintiff's only allegation on appeal is that the trial court erred in failing to find that defendant Robert Hall, as a matter of law, negligently drove his vehicle causing it to collide with the cattle of the plaintiff to plaintiff's damage in the amount of approximately $1,000. The allegation is without merit.
On the evening of November 9, 1965, defendant Robert Hall was driving a pickup truck with his bright lights on at 45 m.p.h. in a 60 m.p.h. zone. The highway was blacktop with barrow pits on either side. Plaintiff owned 71 head of cattle which were kept in a fenced pasture not far from the highway. Some of the cattle had gotten out on previous occasions and were found on or near the highway. On the evening in question, some unknown person apparently left one of the pasture gates open. Several of plaintiff's black angus cows and calves moved out of the pasture through another field and emerged through high weeds along the barrow pit and started crossing the highway. Defendant first observed a small group of black angus cows on the right side of the road. He avoided striking them by swerving to the left. He then observed a larger herd of black angus on the highway ahead and applied his brakes, leaving 111 feet of skid marks. When defendant struck the first animal, the pickup lights went out and the hood flew up obscuring his vision. Six calves and one cow were killed or had to be destroyed as a result of the collision.
We agree with the findings of the trial court that the plaintiff failed to establish by a preponderance of the evidence negligence on the part of the defendants. Findings of a trial court when supported by the evidence will not be disturbed on review. Allison v. Heller, 132 Colo. 415, 288 P.2d 160.
Plaintiff's arguments are that defendant was either driving too fast, or his head lights were not as bright as required by statute or he looked and failed to see what must have been readily apparent. These arguments are only assumptions which are not supported by the evidence. Negligence must be proved by preponderance of the evidence. Proof of happening of an accident or the occurrence of an injury alone raises no inference of negligence. City of Grand Junction v. Lashmett, 126 Colo. 256, 247 P.2d 909.
As was stated in Rivers v. Pierce, 106 Colo. 236, 103 P. 690:
'While a motorist is required to exercise reasonable care to avoid a collision with domestic animals on a highway, he is not an insurer against injury to such animals. * * * Liability attaches in such cases only where the driver of the car is negligent, which negligence must be established by the owner of the animal injured or killed.'
Judgment is affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.