Opinion
No. 3747.
Decided July 6, 1948.
An owner of cattle is bound to use reasonable care to maintain a suitable fence to prevent the cattle from escaping onto the highway and doing injury to others. Exclusion of evidence on the ground of remoteness and as being cumulative is the Trial Court. In an action arising out of a collision between a motor vehicle and the defendant's cow, the Trial Court was at liberty to believe evidence of an admission by defendant that he had put the cow back an hour before regardless of conflicting testimony and to consider it on the issue of the defendant's due care in maintaining the fence.
CROSS ACTIONS ON THE CASE for negligence, arising out of a collision between an automobile driven by Wilfred B. Howland, hereinafter referred to as the plaintiff, and a black cow owned by Charles Cressy, hereinafter referred to as the defendant. Trial by the Court with a view, resulting in verdicts for Howland as plaintiff for damages done to his automobile and as defendant in the action against him by Cressy for the death of the cow. At the close of the plaintiff's evidence the defendant's motion for a nonsuit was denied subject to exception, and at the close of all the evidence the defendant's motion "that plaintiff Howland's action be nonsuited" was also denied subject to exception. Exceptions were taken by the defendant to the admission and exclusion of evidence, to the Court's granting of the plaintiff's requests and to the denial of certain of the defendant's requests. The defendant further excepted to the denial of his motion to set aside the verdicts because they were against the weight of the evidence, the law and the evidence, and because they were in part based upon evidence that "the night before the accident all the cows got out of pasture," and because proffered by the defendant to explain the circumstances under which they got out was excluded.
It appears that the accident happened between 5:15 and 5:45 on an overcast afternoon on November 8, 1945. There was evidence that the cow, which died as a result of the accident, came onto the public highway behind one car and ahead of another, which the plaintiff was meeting; that just before the collision the plaintiff and the driver of the second car had their lights on low beam and the first car had its parking lights lit. Further facts appear in the opinion. Transferred by Wescott, J.
George P. Cofran and Thomas E. Flynn, Jr. (Mr. Flynn orally), for Howland.
Willoughby A. Colby (by brief and orally), for Cressy.
The defendant's exceptions are overruled. There was ample evidence to justify the verdicts rendered by the Court and it does not appear that they were the result of any error in the proceedings. The defendant claims that there was error in the finding that he made no attempt to examine or repair the fence on the evening the cow escaped. The answer to this is that there was evidence that no repairs were made at that time and that due care required that they be made. The Court was at liberty to disbelieve the defendant's testimony that he examined the fence, and therefore from this and the surrounding circumstances the finding was warranted. But if it may be assumed erroneous it does not avail the defendant. If he examined the fence and found it defective, as the Court had a right to believe it was, he was all the more negligent for failing to repair it and hence the error if any was immaterial.
The defendant also excepted to the finding that the cow had escaped an hour before the accident. There was evidence of an admission by the defendant that he had "just put that damn cow back about an hour before." No reason appears why the Court was not at liberty to believe this regardless of conflicting testimony and believing it to consider it on the question of the defendant's care. The defendant also contends there was error in excluding testimony that a neighbor's dog had been seen in the pasture during the week before the cow was killed "aggravating the cattle." Evidence was admitted that immediately after the accident Cressy saw the dog in the pasture running around and that the cattle some distance away appeared scared. He was allowed to give his opinion in substance that the dog was the cause of the black cow's escape from the pasture on the night of the accident. It seems that evidence as to the happenings during the week before was properly excluded on the ground of remoteness, which is for the Presiding Justice (Hunt v. Company, 94 N.H. 421, 424, and cases cited) and also as being in effect cumulative. Hackett v. Railroad, 89 N.H. 514, 519.
Lastly, the defendant claims that there should be no liability in this state as a matter of law for damages resulting from a failure to use reasonable care in keeping a suitable fence to prevent the escape of cattle. Whatever support this doctrine may have elsewhere it has none here, nor we believe among the better authorities in general. Blaisdell v. Stone, 60 N.H. 507, and cases cited; Kennett v. Durgin, 59 N.H. 560, and cases cited; Restatement, Torts, s. 518 (1); 3 C.J.S. Animals, ss. 145, 149. Our fundamental rule, that everyone is bound to use ordinary care to prevent injury to others, seems particularly applicable to this case in view of modern travel conditions.
Judgment on the verdicts
All concurred.