Griffith v. Schmidt , 110 Idaho 235 ( 1986 )

BAKES, Justice.

A jury found plaintiff 80% contributorily negligent in a collision between her car and defendants’ horses which were loose on the highway at night. The trial court granted a new trial to plaintiff, which ruling the defendants have appealed. Defendants also appealed the giving of certain jury instructions in the event that the grant of the new trial is affirmed.

On the evening May 3, 1979, plaintiff, then eighteen years old, helped to organize a Saturday night party at a sportsmen’s access to the Big Lost River off U.S. Highway 93, approximately 3 miles north of Mackay, Idaho. Plaintiff was among the first to arrive around 10:30 p.m. After a while plaintiff, who was driving her own automobile, returned to town with her brother and a girlfriend. They picked up a guitar, a beer for the brother, and two mixed drinks (“screwdrivers”) for the girlfriend. Having obtained these items, plaintiff and her passengers “cruised” the town and stopped to talk to two male friends who were in a pickup. Plaintiff informed the friends of the party at the sportsmen’s access. Both vehicles left town at approximately the same time traveling north on the highway toward the sportsmen’s access.

Plaintiff testified that she had just passed her friends in the pickup and had been looking back at the pickup when she turned her head forward just prior to colliding with two of defendants’ horses which were running loose on the highway. The car left the highway and traveled through a fence and field before coming to rest in a ditch. Plaintiff was rendered unconscious and was seriously injured with lacerations to the head and neck. The brother and girlfriend were in shock, but not seriously injured. The friends in the pickup removed the injured from the car and transported them to town where an ambulance with emergency personnel took them to hospitals in Arco and then to Idaho Falls. A deputy sheriff arrived at the scene after the injured were taken away. After he realized that the damaged car belonged to his stepdaughter, he left for the hospital without completing an investigation. The scene was then investigated the next afternoon by an Idaho state patrolman.

Plaintiff sued the owners of the horses, alleging that the horses were “unlawfully” on the highway due to defendants’ negligence. At trial plaintiff’s position was that defendants were strictly liable, barring contributory negligence as a defense. Defendants’ position was that all reasonable care was exercised in enclosing the horses and that plaintiff was contributorily negligent based on allegations of exceeding the speed limit, driving inattentively, driving under the influence of alcohol, racing and failing to maintain brakes. Prior to submitting the case to the jury, the trial court ruled that defendants were negligent as a matter of law regardless of reasonable care exercised with the horses, but that this ruling did not bar contributory negligence as a defense. The trial court further ruled that substantial evidence existed to support jury instructions on all of defendants’ theories of contributory negligence. The jury found plaintiff to be 80% negligent and defendants only 20% negligent, and fixed defendants’ damages on their crossclaim at $1,250 for the loss of the horses. Judgment was entered on the defendants’ cross-claim.

In a subsequent order granting plaintiff’s motion for a new trial, the trial court held that no substantial evidence existed to support the contributory negligence instructions based on driving under the influence, racing or failing to maintain brakes. The court reasoned that these instructions “likely caused the jury to accumulate speculated negligence on the part of plaintiff” so that the jury verdict of 80% negligence “was not justified and that a fair and impartial trial was not had.” The defendant animal owners have appealed.

I. New Trial

We first address the defendants’ assignment of error that the grant of a new trial was improper. The trial court has broad discretion under I.R.C.P. 59(a) when determining whether to grant or deny a motion for new trial. As stated in Dinneen v. Finch, 100 Idaho 620, 626, 603 P.2d 575, 581 (1979):

“This Court is firmly committed to the rule that a trial court possesses a discretion to be wisely exercised in granting or refusing to grant a new trial and that such discretion will not be disturbed on appeal unless it clearly appears to have been exercised unwisely and to have been manifestly abused.”

Defendants argue that each of the several contributory negligence instructions were supported by substantial competent evidence, and therefore the trial court’s contrary conclusion as a basis for a new trial was reversible error. There is no need for this Court to independently review each of the several contributory negligence issues and conclude whether or not substantial competent evidence existed to support an instruction on that particular issue. At best, each presents an extremely close question and we need not take a position on each issue to affirm the grant of a new trial. It is sufficient to say that the trial court’s conclusion that the cumulative effect of the instructions “likely caused the jury to accumulate speculated [contributory] negligence on the part of the plaintiff ... [and] eighty percent [contributory] negligent as a proximate cause was not justified and a fair and impartial trial was not had,” does not clearly appear to be an unwise or manifest abuse of discretion.

“ ‘[T]he trial court may set aside a verdict and grant a new trial whenever it appears to the trial court that the verdict is contrary to the law or evidence or that the verdict fails to render substantial justice. ...

“ ‘[T]he trial judge was in a position to see and hear the witnesses speak. He could observe their demeanor on the witness stand, and consequently was in a better position to judge their credibility and to weigh their testimony than is this court----” Dinneen v. Finch, 100 Idaho 620, 625, 603 P.2d 575, 580 (1979), quoting Rosenberg v. Toetly, 93 Idaho 135, 138-139, 456 P.2d 779, 782-783 (1969).

Therefore, we affirm the trial court’s grant of a new trial.

II. Animal Owner Liability

Defendants have raised additional issues on appeal in the event that the grant of the new trial is affirmed. The trial court ruled and accordingly instructed the jury that defendants’ conduct was a proximate cause of the accident and was negligence as a matter of law in view of the fact that defendants’ horses were running at large on the highway at night. Therefore, the jury was foreclosed from considering whether defendants properly cared for and enclosed their horses and whether the horses were on the highway as a result of defendants’ negligence or another cause beyond their control.

A nighttime collision between a domestic animal and a vehicle is not uncommon in Idaho. Our research finds six such cases authored by this Court dealing with rights and liabilities between the animal and vehicle owners. The first such case, Shepard v. Smith, 74 Idaho 459, 263 P.2d 985 (1953), analyzed the doctrine of res ipsa loquitur, and then ruled that res ipsa loquitur “should be applied at least to the extent of requiring the owner of animals unattended upon a heavily traveled highway ... to satisfactorily explain their presence in order to avoid an otherwise justifiable inference of negligence.” Id. at 464-465, 263 P.2d 985. In Shepard, the animal owner presented evidence attempting to show that he was diligently searching for the animals just prior to the accident. The Court apparently considered this evidence as an attempt to explain or rebut the inference of negligence. The Court stated:

“From such a state of facts the jury may have concluded the search was cursory and that in discontinuing further effort to find the animals or to keep them off the highway, and retiring for the night, under the circumstances, the owners were negligent. At least the question for the jury was presented.” 74 Idaho at 465, 263 P.2d at 988.

The second animal-vehicle collision case, O’Connor v. Black, 80 Idaho 96, 326 P.2d 376 (1958), interpreted Shepard as follows:

“We interpret the announcements of the Shepard v. Smith case to be that the presence of livestock unattended upon a heavily traveled highway in the nighttime raises an inference of negligence on the part of the owner. In the absence of any satisfactory explanation by the owner of the presence of the animals thus on the highway at night unattended, a jury would be justified in finding that the presence of such animals on the highway was the result of negligence on the part of the owner.

“If a jury should find from the preponderance of the evidence that the animals were upon such highway at night unattended then the jury should further determine whether their presence on the highway has been satisfactorily explained by the owner; and from all the facts and circumstances in evidence, determine whether the owner was negligent, and if so, whether such negligence on his part was the proximate cause of the collision and damage which the motorist sustained.” 80 Idaho at 104, 326 P.2d at 380.

In the O’Connor opinion, the Court quoted with approval the res ipsa loquitur doctrine from Shepard and supported the doctrine with similar quotes from other jurisdictions. 80 Idaho at 101-102, 326 P.2d at 378-79. In both Shepard and O’Connor the inference of negligence and the alleged satisfactory explanation were issues of fact to be decided by the jury.

Subsequent to these first two cases the legislature enacted statutes granting immunity from liability and negligence to the animal owner in accidents stemming from a domestic animal’s collision with a vehicle if: (1) the animal is running on “open range,” I.C. § 25-2118; or (2) if the animal is “lawfully” on any highway, I.C. § 25-2119. The term “lawfully” is not defined, but its definition is not at issue in cases of nighttime vehicle collisions with unattended domestic animals running at large wherein we can presume the animals’ presence on the highway does not fall within any reasonable definition of “lawfully.” The plaintiff vehicle owner in the present case argues that if the statutes grant immunity as a matter of law when the animal is in “open range” or is “lawfully” on the highway, then the statutes also impose liability as a matter of law when the animal is not in “open, range” or “lawfully” on the highway. We disagree, since a grant of immunity in specific circumstances cannot be equated to an imposition of strict liability as a matter of law when those specific circumstances are not found. Further, nighttime vehicle-animal collision cases considered by this Court subsequent to the enactment of the statutes have never held the animal owner negligent as a matter of law. Rather, the most recent opinion of Cunningham v. Bundy, 100 Idaho 456, 600 P.2d 132 (1979), continued to cite with approval Shepard and O’Connor, the two original cases prior to the statutes, and their limited application of res ipsa loquitur which supplies an inference of negligence “unless satisfactorily explained by the [animal] owner.” Cunningham v. Bundy, 100 Idaho at 458, 600 P.2d at 134. The animal owner may rebut the inference by submitting evidence of the proper care, proper enclosures, fence conditions, fence inspections, diligent searches, etc. See Cunningham v. Bundy, supra; Whitt v. Jarnagin, 91 Idaho 181, 418 P.2d 278 (1966); Corthell v. Pearson, 88 Idaho 295, 399 P.2d 266 (1965); Soran v. Schoessler, 87 Idaho 425, 394 P.2d 160 (1964); O’Connor v. Black, 80 Idaho 96, 326 P.2d 376 (1958); Shepard v. Smith, 74 Idaho 459, 263 P.2d 985 (1953). See also Maguire v. Yanke, 99 Idaho 829, 590 P.2d 85 (1978) (crop damage by cattle at large); Stanberry v. Gem County, 90 Idaho 222, 409 P.2d 430 (1965) (owner not liable for negligence of bailee in possession of animal).

To summarize the law: (1) the owners of domestic animals are not liable or negligent when the animals cause a highway collision in “open range” or when the animals are “lawfully on any highway,” I.C. §§ 25-2118, -2119; (2) if the “open range” or “lawful” conditions are not present, then the doctrine of res ipsa loquitur supplies an inference that the animal owner was negligent; (3) the inference can be supplemented by other evidence of the owner’s negligence; (4) the inference can be rebutted by a satisfactory explanation or showing by the animal owner of proper care, enclosures, and any other evidence tending to negate the inference of the owner’s negligence; (5) when properly placed at issue by the parties, the issues of lawful presence, inference of negligence, and rebuttal of the inference, are questions for the trier of facts; and (6), in any event, the vehicle owner may be liable for contributory negligence under various theories.

Applying these rules to the present case, we find no evidence to establish that the horses were in “open range” or “lawfully” on the highway. Hence, the animal owners were not entitled to immunity pursuant to I.C. §§ 25-2118, -2119. Without any other evidence, other than the facts that defendants owned the animals which were unattended on the highway at night, the doctrine of res ipsa loquitur supplies an inference from which the jury could conclude that defendants were negligent and that negligence proximately caused the accident. The jury should also have been permitted to consider the evidence offered by defendants as to the proper care and enclosures of the horses, which evidence was offered in an attempt to rebut the inference of the negligence and proximate cause. Therefore, the trial court erred by taking that issue from the jury and ruling as a matter of law that the animal owners were negligent and proximately caused the accident.

III. Exceeding the Statutory Speed Limit

The appellants raise the additional issue of whether or not exceeding the maximum speed limit contained in I.C. § 49-681 is negligence per se. An expert witness testified that plaintiff’s estimated range of speed was from 65-90 m.p.h., most probably 70-75 m.p.h. The passenger in the pickup estimated the pickup’s speed to be 65 m.p.h., and there was evidence that plaintiff had just passed the pickup when the collision occurred. Plaintiff herself estimated the speed of her vehicle at the time of the collision to be 60 m.p.h. Therefore, the evidence was uncontroverted that plaintiff was exceeding the posted and statutory speed limit of 55 m.p.h. at the time of the collision. The trial court nevertheless refused defendants’ proposed jury instruction that exceeding the speed limit constituted negligence per se.

Prior to 1977, former I.C. § 49-701 contained Idaho’s basic rule and maximum speed limits and specifically set out that the violation of the maximum speed limit was prima facie evidence that the speed was not reasonable or prudent. This was interpreted as creating a rebuttable prima facie case of negligence. See Stanberry v. Gem County, 90 Idaho 222, 409 P.2d 430 (1965); State v. Trimming, 89 Idaho 440, 406 P.2d 118 (1965); Jones v. Talbot, 87 Idaho 498, 394 P.2d 316 (1964).

In 1977, the motor vehicle statutes were recodified with the basic rule and maximum speed limits being contained in I.C. § 49-681, which statute now contains no indication as to the effect to be accorded a violation of the statute. The recodification included I.C. § 49-686(2) which provides that violation of the maximum speed limitations “shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence on the part of the defendant as the proximate cause of an accident.” This Court has not interpreted these two statutes as to the effect of a violation of the maximum speed limits since the recodification. The Idaho Court of Appeals has ruled that, “I.C. § 49-681 is a safety statute, enacted for the protection of motorists and other persons using Idaho’s roads,” and therefore the Court of Appeals applied a negligence per se standard to a violator, with the issue of causation to be submitted to the fact-finder (assuming the causation issue was properly placed in issue by the parties). See Johnson v. Emerson, 103 Idaho 350, 352, 647 P.2d 806, 808 (Ct.App.1982). We are also aware of the well settled rule that the violation of other safety-related motorist statutes constitutes negligence per se. Bradbury v. Voge, 93 Idaho 360, 461 P.2d 255 (1969) (motorcyclist operating to the left of center line); Bale v. Perryman, 85 Idaho 435, 380 P.2d 501 (1963) (passing at an intersection). See also Pittman v. Sather, 68 Idaho 29, 188 P.2d 600 (1947) (negligence per se is the violation of a statutory duty); Brixey v. Craig, 49 Idaho 319, 288 P. 152 (1930) (violation of a positive statutory inhibition is negligence per se).

Plaintiff argues that I.C. § 49-686(2), which states:

“(2) The provision of this title declaring maximum speed limitations shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence on the part of the defendant as the proximate cause of an accident,”

was intended by the legislature to abrogate the common law that violation of the maximum speed limit is negligence per se. This argument was accepted by the trial court when refusing to instruct the jury that plaintiffs excessive speed constituted negligence. The trial court was of the opinion that the federally imposed 55 m.p.h. speed limit was merely an energy saving statute unrelated to safety. We are unpersuaded by the argument. In construing a statute with exactly the same wording as I.C. § 49-686(2), the New Mexico court stated:

“This section reads:

“ ‘The provision of this act declaring pri-ma facie speed limitations shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence on the part of the defendant as the proximate cause of an accident.’ “Mrs. Turner contends that under this statute, proof of violation of a posted speed is not negligence per se; rather, that a violation can be no more than evidence of negligence. We disagree. “Section 64-18-7(B), supra, indicates that in cases concerned with posted speed limits plaintiff must still meet his traditional burden of proof. It says that a case involving posted speed limits is not a special category just because posted speed limits are involved. Even if posted speed limits are involved, plaintiff must still prove negligence as a proximate cause of the accident.

“Section 64-18-7(B), supra, however, does not state how negligence is to be proved. Proof of violation of a statute is one method of proving negligence. See Clay v. Texas-Arizona Motor Freight, Inc., 49 N.M. 157, 159 P.2d 317 (1945). Section 64-18-7(B), supra, does not provide that proof of violation of statutes concerning posted speed limits is not proof of negligence.

“Once it was proved that Mrs. Turner violated the posted speed limits she was negligent as a matter of law because proof of the violation was proof of negligence on her part. Section 64-18-7(B), supra, does not change that rule.” Dahl v. Turner, 80 N.M. 564, 458 P.2d 816, 823 (App.1969), cert. den. 80 N.M. 608, 458 P.2d 860 (N.M.1969).

We are persuaded that the maximum speed contained in I.C. § 49-681 which states, “[N]o person shall drive a vehicle at a speed in excess of such maximum limits: ... (b) Fifty-five (55) miles per hour in other locations [outside urban districts],” is a safety statute and the violation of this positive inhibition is negligence per se. Johnson v. Emerson, 103 Idaho 350, 647 P.2d 806 (Ct.App.1982). Accord Dahl v. Turner, supra; Theonnes v. Hazen, 37 Wash.App. 644, 681 P.2d 1284 (1984). We agree with the New Mexico court’s interpretation of the statutory language contained in I.C. § 49-686(2), that a plaintiff in a civil action is not relieved from proving proximate cause even though the negligence found is a result of the violation of the maximum speed limits set out in I.C. § 49-681. In the present case the evidence was uncontroverted that plaintiff was exceeding the maximum speed limit of 55 m.p.h. Therefore, the trial court erred in refusing to instruct the jury that plaintiff’s speed constituted negligence as a matter of law. Only the issue of whether such negligence proximately caused the accident should have been submitted to the jury.

The order of the trial court granting a new trial is affirmed, and the case is remanded for a new trial with legal instructions consistent with this opinion.

Affirmed in part, reversed in part, and remanded. No costs or attorney fees.

DONALDSON, C.J., and SHEPARD,-BISTLINE and HUNTLEY, JJ., concur.