Kelly v. Willis

78 S.E.2d 711, 238 N.C. 637, 1953 N.C. LEXIS 594

• Court: Supreme Court of North Carolina
• Decided: November 25, 1953
• Docket: 311
• Status: Published

Opinions

EeviN, J.

The appeal is concerned solely with the propriety of the compulsory nonsuit.

The statute codified as G.S. 68-23 provides that “if any person shall allow his livestock to run at large within the limits of any county, township or district in which a stock law prevails or shall prevail pursuant to law, he shall be guilty of a misdemeanor, and fined not exceeding fifty dollars, or imprisoned not exceeding thirty days.” This enactment is clearly applicable to this case because the events culminating in this litigation undoubtedly occurred in territory covered by the stock law. G.S. 68-39.

The statute under scrutiny expressly subjects the owner of livestock to criminal responsibility as a misdemeanant if he knowingly allows his livestock to run at large in stock-law territory. S. v. Brigman, 94 N.C. 888; Sharp v. State, 25 Ala. App. 491, 149 So. 355; 3 C.J.S., Animals, section 141. It impliedly subjects the owner of livestock to civil responsibility as ■& tort-feasor if he knowingly or negligently permits his livestock to roam at large in stock-law territory, and in that way proximately causes injury to the person or property of another. Gardner v. Black, 217 N.C. 573, 9 S.E. 2d 10. Moreover, the common law, acting independently of this or any other legislative enactment, imposes upon the owner of livestock civil responsibility as a tort-feasor if he knowingly or negligently suffers his livestock to be at large on a highway, and in that way proximately causes injury to the person or property of a user of the highway. Bethane v. Bridges, 228 N.C. 624, 46 S.E. 2d 711; Gardner v. Black, supra; Lloyd v. Bowen, 170 N.C. 216, 86 S.E. 797; Rice v. Turner, 191 Va. 601, 62 S.E. 2d 24; Smith v. Whitlock, 124 W. Va. 224, 19 S.E. 2d 617, 140 A.L.R. 737; 2 Am. Jur., Animals, section 60.

The plaintiff did not offer any direct evidence tending to show that the defendant knowingly or negligently allowed his mule to run at large on the highway. He was not required to do so. It was permissible for him to produce circumstantial evidence sufficient to establish this crucial fact. Wyrick v. Ballard Co., Inc., 224 N.C. 301, 29 S.E. 2d 900; Corum v. Tobacco Co., 205 N.C. 213, 171 S.E. 78; Lynch v. Telephone Co., 204 N.C. 252, 167 S.E. 847.

According to the evidence, the collision between the plaintiff’s truck and the defendant’s mule marked the fourth occasion within a fortnight on which the mule wandered unattended, uncontrolled, and unrestrained in proximity to the highway half a mile from the defendant’s farm. 'When this evidence is interpreted in the light most favorable to the plaintiff, it is ample to support the inference that the mule was at large on the highway at the moment of the collision simply because the defendant knowingly or negligently allowed it to be there. The other evidence is sufficient to sustain the additional inference that the wrongful act or the negligent omission of the defendant was the sole proximate cause of the collision and the resultant damage to the truck.

It necessarily follows that the entry of the compulsory nonsuit constituted error regardless of whether the court acted on the theory that the evidence was inadequate to show legal culpability on the part of the defendant or on the theory that the plaintiff’s driver was contributorily negligent as a matter of law.

The facts in this case are unlike those in Bethune v. Bridges, supra, and Gardner v. Black, supra, where the offending animals did not run at large before the events producing the litigation.

The compulsory nonsuit is

Reversed.