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District Court of Appeal, Second District, Division 1, California.



Civ. 9801, 9802.

Decided: November 29, 1935

Black, Hammack & McWilliams, of Los Angeles, for appellants. Oscar Richard Cummins and Harry C. Cogen, both of Los Angeles, for respondents.

Each of these actions is for personal injuries caused by the collision of an automobile with a cow. The plaintiffs based their actions on the doctrine of res ipsa loquitur. Defendant, although admitting ownership of the cow, denied any negligence and also pleaded the contributory negligence of the plaintiffs. The cases were tried together before a jury which returned separate verdicts in favor of each plaintiff. Defendant has appealed from each of the judgments entered thereon.

The facts concerning the accident are undisputed. Anderson, accompanied by Hernandez riding with him as his guest, was driving his automobile about 11 o'clock at night in a southerly direction on a straight, practically level, concrete highway fenced on both sides. The easterly side of the road was bordered by the Southern Pacific Railroad. The country is largely devoted to grazing, there being approximately 600 square miles of practically unfenced desert land used for this purpose. It has been the custom of cattle owners for many years to turn their stock loose in this territory for grazing from late fall until late spring. Some 2,500 cattle owned by different persons are grazed in this way. About 900 of this number were owned by the respondent at the time of the accident.

The cattle owners collectively employed a number of cowboys to look after their cattle, and they were on duty from approximately dawn to dusk. Part of the duty of these cowboys was to see that the gates in the fences were kept closed.

The lands of defendant are some twenty miles distant from the scene of the accident. All of defendant's cattle are grazed on the easterly side of the highway and separated therefrom by the railroad track and two fences above mentioned. The water holes for the cattle are some three miles east of the railroad track. No control over or duty to maintain any fence was shown to be in defendant. The only evidence of negligence of defendant offered in plaintiffs' cases was the presence on the road of defendant's cow. How the cow got on the road is a matter of conjecture. Apparently in some manner she got into the territory west of the highway and entered an open gate along with a few other cattle, the ownership of which was not disclosed. Defendant never grazed any of its cattle west of the highway, and the only inference to be drawn is that this particular cow was either a strayed or stolen animal.

Plaintiff's car was in excellent condition as to lights and brakes, being practically a new car. There is no evidence as to speed save plaintiff's testimony that he thought he was driving about 40 miles per hour, and whatever inference may be drawn from the fact that after striking the cow the automobile rolled over once or twice, went through the fence and came to rest on the railroad right of way about 170 feet from the point of impact. Just before the collision occurred plaintiff observed an approaching truck and both the truck driver and plaintiff lowered the lights of their respective cars. Plaintiff did not see the cow until immediately before the impact, possibly 50 feet away. Hernandez never saw the cow; was making no effort to keep a lookout and at no time spoke to or admonished Anderson as to the manner of driving.

As a result of the collision with the cow, the automobile overturned and the occupants received injuries for which these suits were brought.

Appellant insists that the evidence is wholly insufficient to sustain the verdicts against it, and, also, that the evidence shows that Anderson, the driver of the automobile, was guilty of contributory negligence as a matter of law.

The facts of this case bring it clearly within the rule stated in Kenney v. Antonetti, 211 Cal. 336, 295 P. 341, 342, where the court said: “The fact that defendants' horses were unattended upon the highway at night and the other facts adduced by the evidence, considered in the light of the above provisions [sec. 151, California Vehicle Act, Stats. 1923, p. 517; sec. 1714 Civil Code] and the further general rules of negligence applying at all times, clearly gave rise to an inference of negligence here, and sufficiently established plaintiff's prima facie case.” Appellant insists that the rule stated in that decision is not applicable to this case for the reason that in 1933, after the accident sued upon in the cases now before us and before the cases were tried, the Legislature repealed section 151 of the California Vehicle Act and enacted it, with certain changes, as section 423 of the Agricultural Code. (Deering's 1933 Supplement, Act 144.) The contention is that the appellant is entitled to the benefit of the statute as it existed at the time of trial, and that its liability is to be measured accordingly.

As this section existed in 1927 (St. 1927, p. 1440) at the time of the accident which was the subject of controversy in the Kenney Case, it provided that: “No person owning, or controlling the possession of, any live stock, shall voluntarily or negligently permit any such live stock to stray upon or remain unaccompanied by a person in charge or control thereof upon a public highway.” The Legislature of 1931 amended the section in minor particulars not material to the point under consideration.

The changes of 1933 are the substitution of the word “willfully” for “voluntarily,” and the addition of the following: “In any civil action brought by the owner or driver of a motor vehicle for damages caused by collision with any domestic animal or animals on a highway, there is no presumption that such collision was due to negligence on behalf of the owner of such livestock.” Appellant therefore insists that it is entitled to the benefit of the latter provision.

The Legislature of 1931 (St. 1931, p. 2120) amended the California Vehicle Act (St. 1923, p. 553) by adding to section 113 the provision: “In any civil action the driver of a vehicle who has operated such vehicle at a speed in excess of the miles per hour set forth in subdivision (b) applicable at the time and place shall not be deemed to have been negligent by reason thereof as a matter of law but in all such actions the burden shall be upon the opposing party to establish that the operation of such vehicle at such speed constituted negligence.” In the case of Morris v. Pacific Electric Railway Co., 2 Cal. (2d) 764, 43 P.(2d) 276, the court held that this change was prospective only and did not apply to actions arising before the amendment, but tried after it took effect. The same rule is applicable here, and appellant is not entitled to the advantage of the statute enacted after the accident occurred.

The facts shown by the plaintiffs gave rise to an inference of negligence and established, prima facie, the right of each to recover. As against this inference, it was the duty of the jury to weigh and consider the evidence presented by the defendant. This it undoubtedly did. The determination by the jury of this issue of fact is final and absolutely controlling upon this court. In re Estate of Moore, 162 Cal. 324, 122 P. 844.

Appellant bases its claim that the respondent Anderson was guilty of contributory negligence on the asserted misuse of the lights on the automobile coupled with excessive speed. Anderson testified that as he approached the on-coming truck he lowered the beam of the headlights on his automobile without decreasing their brilliance. In such position, he testified, “they hit the car in front of you about 40 feet.” By the testimony of an expert it was shown that automobile headlights complying with the requirements of the California Vehicle Law (supra) would throw a light 720 feet when not depressed. There is no claim that the headlights on the automobile in which the plaintiffs were riding did not comply with the statutory requirements. But it is contended that the driver should either not have lowered the beam of his lights, or should have reduced the speed of the car which he was driving.

The California Vehicle Act (supra) provides in section 101, as amended by St. 1927, p. 1433, that headlights on automobiles may be constructed to permit them to be depressed below the level otherwise required, but without diminishing the amount of light projected therefrom. Whether or not respondent Anderson was guilty of negligence in driving at a speed estimated by him to have been 40 miles per hour after he had lowered the beam of the headlights on his automobile was a question of fact to be decided by the jury, taking into consideration all of the circumstances which existed at the time and place of the accident. The distance of the on-coming truck, the color of the highway, the condition of the atmosphere, the visibility other than from headlights, and numerous other circumstances might properly have been, and no doubt were, considered by the jury in passing upon the alleged negligence of respondent Anderson. Under the evidence in this case, respondent Anderson was not negligent as a matter of law (Hine v. Leppard (Cal.App.) 42 P.(2d) 389; Id. (Cal. App.) 43 P.(2d) 595), and there is no evidence of any negligence on the part of respondent Hernandez.

The judgments are, and each of them is, affirmed.

EDMONDS, Justice pro tem.

We concur: YORK, Acting P. J.; DORAN, J.

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