(concurring in part; dissenting in part) — Despite scientific advances in animal husbandry, there has not yet been born a black angus steer that is temperamentally inclined to observe the motor vehicle code. I think the legislature was mindful of this limitation in animals when, in 1937 — the fast car and high-speed highways having arrived on the American scene — it enacted Laws of 1937, ch. 189, § 127, p. 913 (RCW 16.24.070), with the intention, in my opinion, to rule livestock off the highways except under the most guarded of circumstances. This provision, I feel, imposes strict liability upon the owners and custodians of livestock, without regard to the owners’ negligence, for injuries proximately caused by animals on the roadway. Accordingly, although in agreement with the *610majority that the cause be remanded for a new trial, I would limit the issues to the question of damages; the facts, in my opinion, establish defendants’ liability as a matter of law.
About 12:15 in the early morning darkness of October 9, 1960, on U.S. Highway 101, in a stock-restricted area between Sequim and Port Angeles, in a 60-mile-per-hour posted speed limit zone, the plaintiff, Robert Scanlan, driving his car between 35 and 40 miles per hour, encountered three black angus cattle on the highway. He applied his brakes, but unable to avoid the animals crashed into them, suffering injuries.
Defendant, owner of the black angus, had gone to Ellensburg the previous day, after earlier arranging with neighbor boys to feed the cattle once daily in their enclosure. The enclosure had two gates, the main one secured by a wooden slide and the other gate by a wire loop. One of the boys, after feeding the cattle about 5:30 the night before the accident, left the enclosure by the main gate. Defendant owner had no explanation of the means or method by which the cattle escaped their enclosure.
My opinion that the legislature intended to impose strict liability on the owners of livestock on the highways in stock-restricted areas stems largely from a consideration of the two pertinent statutes dealing with livestock on the public’s right of way. The first, Laws of 1937, ch. 40, § 6, p. 106 (RCW 16.24.065), is a herd law; it has to do with the protection of livestock, crops and real and personal property by regulating grazing areas. It separates, by administrative means, farm areas in which no livestock may run at large from other farm areas in which the same animals may lawfully be at large. That all administrative powers granted by the act vest in the county commissioners, without mention of cities or towns or their officers, marks this as farm legislation designed primarily to affect agriculture with merely incidental effect on traffic control. In part, it makes negligence and willfulness standards of conduct in fixing responsibility for farm animals.
*611Section 6 of the herd law (RCW 16.24.065) reads:
No person owning or in control of any livestock shall willfully or negligently allow such livestock to run at large in any stock restricted area, nor shall any person owning or in control of any livestock allow such livestock to wander or stray upon the right of way of any public highway lying within a stock restricted area when not in the charge of some person. (Italics mine.)
In giving effect to all of the words employed in this statute, I conclude that the words willfully and negligently fix the standards of care as to livestock running at large generally in a stock-restricted area, but impose liability in particular on the owners without reference to negligence for livestock on the public highways in a stock-restricted area unless the animals are in the charge of some person. So, if wandering livestock cause damage in a stock-restricted area other than on a public right of way, the party seeking redress must prove, under this section, that the owner willfully or negligently permitted the animals to be at large. Bly v. McAllister, 58 Wn.2d 709, 364 P.2d 500 (1961). But if injury were caused by animals upon a public right of way, an action for damages would lie under this section upon simple proof that there was no person in charge even though the owner was without negligence or willfulness in allowing the animals upon the right of way. In this fashion, quite logically, I think, the legislature imposed different standards of supervision between stock-restricted areas where there are no public highways and those stock-restricted areas where straying livestock might gain access to a highway right of way.
The most persuasive grounds for strict liability, however, are found not in the herd law (RCW 16.24.065) just discussed, but in that solitary section of the motor vehicle code, Laws of 1937, ch. 189, § 127, p. 913 (RCW 16.24.070), dealing with animals upon the highways. Of that chapter’s 159 sections, this alone deals particularly with dangers from livestock grazing or straying upon any portion of the right of way, thus marking it as a statute designed for highway safety primarily and fostering agriculture *612only incidentally. This statute, designedly I think, omits negligence and willfulness from the tests for liability, and categorically makes it unlawful to allow livestock upon the public right of way except under specific circumstances calling for a high degree of supervision. ROW 16.24.070 reads:
It shall be unlawful for any person to cause or permit any livestock to graze or stray upon any portion of the right-of-way of any public highway of this state, within any stock restricted area. It shall be unlawful for any person to herd or move any livestock over, along or across the right-of-way of any public highway, or portion thereof, within any stock restricted area, without having in attendance a sufficient number of persons to control the movement of such livestock and to warn or otherwise protect vehicles traveling upon such public highway from any danger by reason of such livestock being herded or moved thereon.
In ascertaining the legislative intent from the actual words employed, it should be observed that the legislature did more than eliminate willfulness and negligence from the standards of care required of one who either lets his livestock stray or graze upon the right of way or moves his stock along or upon it in a stock-restricted area. It categorically declared it unlawful to let one’s livestock upon the right of way in the first instance and makes it equally unlawful to herd or move farm animals along or across the right of way unless the animals be under safe escort and control.
Accordingly, I would conclude that, when the legislature adopted RCW 16.24.070 as a part of a comprehensive highway safety code, a statute having merely an incidental relationship to farming, it omitted the words negligently and willfully from this section designedly and bespoke an intent to make it negligence per se to cause or permit livestock to graze or stray upon the public highway in any stock-restricted area. Assuming arguendo the words to have been inadvertently left out, we ought not read them back in. McKay v. Department of Labor & Indus., 180 Wash. 191, 39 P.2d 997, 98 A.L.R. 990 (1934).
*613Therefore, under this section of the statute (RCW 16.24-.070), the wrong is complete and liability attaches without regard to negligence, willfulness or a sense of indifference when (1) a person allows his livestock to graze or stray upon the right of way in a stock-restricted area, or, expressed conversely, fails to keep them from so grazing or straying, or (2) in moving them along or across the right of way, within any stock-restricted area, he fails to provide a sufficient number of persons (a) to control the animals’ movements and (b) to warn or otherwise protect traveling vehicles.
Thus, when plaintiff, traveling between 35 and 40 miles per hour, as he described the accident, crashed into three black angus steers, “coming at a gallop across the road,” on a black night, the mere presence of steers upon the highway without a sufficient number of persons in charge to control their movements obviated the need to prove either willfulness or negligence.
The legislature cannot help but have known even in 1937 that, when a motorist, while moving at lawful speeds upon a modem highway in the dark of night, comes suddenly upon a large animal, an accident usually occurs. It knew, too, that by the time a motorist and his passengers get out of the hospital and return to the scene of the accident, the unlatched gate through which the animal wandered — perhaps miles away — is sure to be latched. In my view, the legislature meant to hold the owners and persons in control of livestock to strict liability where injuries are caused by farm animals upon public highways in stock-restricted areas.
It seems to me that the majority has overemphasized the herd law (RCW 16.24.065) to the disparagement of the motor vehicle code (RCW 16.24.070). I see little to relitigate in this case except damages.
Rosellini, C. J., Finley and Hunter, JJ., concur with Hale, J.