Nylen v. Dayton

URBIGKIT, Justice,

dissenting.

I dissent. In factual progression, this case tells us (1) appellee (defendant) owned a horse; (2) the horse was placed in a pasture under the control of appellee and came to run at large on a fenced public highway; (3) the horse was under the control of appellee; (4) the vehicle being driven by appellant (plaintiff) hit the horse on the public highway where the law says no owner or person having custody will permit livestock to be; (5) the driver of the damaged vehicle did not permit or encourage the animal to be on the fenced highway; (6) the owner of the horse provided no evidence how his horse got where the law denies it permission to be, although surely it did not fly nor swim, and must have been let out by unclosed gates or jumped over insufficient fences; (7) in the context of the English language, the horse itself did not permit itself to be upon the fenced highway; (8) in the absence of proof to the contrary in some defensive fashion, the permitting authority was the owner; and (9) absent proof to the contrary, there is evidence from the accident that followed that the owner permitted the horse to be where it was by failure of an adequate denial of access to be upon the highway.

I would apply the statute in context presently written since the word unlawfully has been deleted in last amendment and find a case to be presented sufficient to escape summary judgment as now presented by the unexplained presence of the animal on the highway. “No owner or person having custody or charge of livestock shall permit the livestock to run at large in any fenced public highways in Wyoming * * *.” W.S. ll-24-108(a). Somebody permitted the horse to be on the highway and, in this record, there is no other suspect except the owner. I do not find a basis justified in precedent for providing the owner of the offending horse absolving summary judgment as a matter of law. Cordova v. Gosar, 719 P.2d 625 (Wyo.1986).

The purpose of fenced highways is well-defined as designed to keep livestock out of roadways and, consequently, to avoid collision injury or damage to the traveling public. No wonder highway accidents and injuries continue to increase if efforts to achieve safety are ascribed such results as will be provided by this case. Furthermore, if the legislature wants to trigger liability by “negligently permitting” or “intentionally permitting” as first requirements following creation of the dangerous condition, the statutory language should expressly provide that disinclination for responsibility. In statutory text, I would not follow Hinkle v. Siltamaki, 361 P.2d 37 (Wyo.1961) to a summary judgment absolution of potential liability from a condition which the legislature obviously sought to prevent. Cf. Endresen v. Allen, 574 P.2d 1219 (Wyo.1978) and Gilliland v. Steinhoefel, 521 P.2d 1350 (Wyo.1974).

This is a summary judgment case where the livestock owner gave no justified explanation for the presence of his horse on the fenced highway where it should not have been. Obviously, such a defense may exist as not now required for this litigation as concluded by this summary judgment. Further, I follow the principle that violation of a statute is prima facie evidence of negligence so that the presence of the animal on the fenced highway may be sufficient to escape motion disposition but not necessarily to establish finite liability following motor vehicle collision. See Short v. Spring Creek Ranch, Inc., 731 P.2d 1195 *1118(Wyo.1987) (Urbigkit, J., concurring). Cf. Endresen, 574 P.2d 1219.

Livestock within a fenced highway constitute a singular danger to the public who travel upon the state highways and I would find that subject adequately addressed by the statute to establish a sphere of responsibility for the owner in order that a collision caused by unexplained presence will proceed to a factual resolution by trial. Stratman v. Admiral Beverage Corp., 760 P.2d 974 (Wyo.1988); Osborn v. Manning, 685 P.2d 1121, 1123 (Wyo.1984). It should not be ignored that Hinkle, 361 P.2d 37 is distinguishable from both Endresen, 574 P.2d 1219 and Gilliland, 521 P.2d 1350, by contrary result with reversal of the summary judgment initially granted to the livestock owner. Like the result in those cases, I would require a full development of the facts here also by trial presentation. Who better than the owner should know what did happen and surely the statute loses substance if subject to a “Gee, I just don’t know” amorphous summary judgment disposition.

The disarmingly simple solution of the majority is a continued invitation for damage and injury to the traveling public for whom the fenced highways were constructed and the prohibitory statute enacted. Consequently, I dissent from affirmation of this summary judgment.