PARKER v. RETER, 234 Or. 544 (1963)

383 P.2d 93

Oregon Supreme Court.Argued June 3, 1963
Reversed and remanded June 19, 1963

IN BANC

Appeal from the Circuit Court, Jackson County, JAMES M. MAIN, Judge.

REVERSED AND REMANDED.

Hugh B. Collins, Medford, argued the cause for appellant.

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On the briefs were Collins, Redden Mullen, Medford.

Robert H. Grant, Medford, argued the cause for respondent. On the brief were Kelly Grant, Medford.

Before ROSSMAN, J., Presiding, and PERRY, SLOAN, O’CONNELL, GOODWIN, DENECKE and LUSK, Justices.

O’CONNELL, J.

This is an action to recover damages for injuries to plaintiff’s person and property when his automobile collided with two heifers owned by defendant. Defendant appeals from a judgment for plaintiff.

Defendant was the owner of a ranch upon which he raised cattle. The ranch was in a closed range district where cattle are prohibited from running at large.[1] The cattle escaped from defendant’s barn, passed through an open gate and went upon the adjoining highway. Plaintiff’s automobile collided with two of the animals. At the time of the accident it was dark, the pavement was damp and there were patches of dense fog.

The trial court instructed the jury “that it is not necessary for you to consider the alleged acts of negligence charged in plaintiff’s first amended complaint, as the statutory duty not to permit an animal to run at large imposes a duty on the owner of such an animal and the fact that an animal was permitted to run at large is negligence as a matter of law.” Defendant took timely exception to the instruction and upon appeal assigns as error the giving of the instruction.

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In a written opinion which accompanied the trial court’s order, the court indicated that the instruction was based upon statements made in Kendall v. Curl, 222 Or. 329, 353 P.2d 227
(1960) to the effect that in a livestock district where it is unlawful to permit livestock to run at large the violation of the statute constitutes negligence as a matter of law. Thus, at one point in the Kendall case it was said, “In numerous parts of the state which have been designated as livestock districts, the act or omission which permits an animal to run at large is a violation of a legal (statutory) duty and hence, if it results in harm, is negligence as a matter of law.” (222 Or at p. 333). This statement was a dictum because the issue before the court was the liability of a landowner in an open range district where the owner has the right to let his livestock run at large.

The holding in the Kendall case, that an owner is not negligent in allowing livestock to be on the highway in an open range district does not, of course, force the conclusion that under the same circumstances in a closed district the owner is negligent as a matter of law.

The scope of the landowner’s duty under ORS 607.045 must be determined by a construction of the statute. Plaintiff contends that a violation of the statute imposes absolute liability where an injury results to those using the highway. Defendant contends that the statute was intended to impose liability only for damage done as a result of livestock going upon other land and that, therefore, plaintiff was not within the class of persons intended to be protected by the legislation. It is then argued that since there is no legislation making the livestock owner liable for injury to persons using the highway the Kendall case is applicable

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and as said in that case, “The motorist must put up with the farmer’s cattle: the farmer must endure the motorist.” (222 Or at p. 336)

Statutes similar to ORS 607.045 have been construed in other states to constitute a proscription against permitting livestock to run upon highways.[2] It will be noted that ORS 607.045
makes it unlawful to permit the animal “to run at large or to be herded, pastured or to go upon the land of another.” Plaintiff points to the use of the disjunctive “or,” contrasting the running of cattle “at large” and the running of cattle upon the land of another as evidence of a legislative intent not to confine the proscription to the latter situation.

That argument loses much of its force, however, if the term “running at large” is given the meaning ascribed to it in our previous cases. In Keeney v. O.R. N. Co., 19 Or. 291, 292, 24 P. 233 (1890) it is explained that the term “stock running at large” refers to animals which “roam and feed at will, and are not under the immediate direction and control of any one.” The term is not used to describe unenclosed animals

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as distinguished from enclosed animals, for, as observed in the Keeney case, “They may be in an enclosure which may restrain the limits in which they shall wander and feed, or they may be on an unfenced range, relatively without limit, where they may roam and feed at will; but in either case they are not subject to the direction and control of any one.”[3] (19 Or at pp. 292-293). But even if we construe the term “run at large” in ORS 607.045 to mean simply “unattended,” the statute is still subject to the construction that the owner of livestock is subject to prosecution not only for permitting unattended animals to go upon the land of another but also for permitting them to go upon a public highway. We so construe the statute.

It does not follow, however, that the statute impose absolute liability for injuries resulting from permitting animals to get upon the highway. Although there are some cases which hold that absolute liability for injury to motorists is imposed upon the owner for the violation of a statute similar to ORS 607.045, most courts construe such statutes as imposing liability only where the owner is at fault.[4] Generally this latter construction

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is derived from the use of the word “permit” in the applicable statute. It is held that the word “permit” implies knowledge, consent or willingness on the part of the owner that the animals be at large.[5] We have adopted this mode of construction. I Lemery v. Leonard, 99 Or. 670, 678, 196 P. 376 (1921) the court, in construing a statute similar to ORS 607.045, said:

“* * * The precedents cited by the plaintiff ignore the fundamental reason of the definition of `running at large.’ In most instances they depend upon the attendant principle that one cannot be said to have permitted a thing of which he has no knowledge or means of knowledge, so, that, if his animals escape from his inclosure without his knowledge or negligence, he does not come within the prohibitions of the statute against `permitting’ his stock to be at large. To `permit’ means to allow by tacit consent or by not hindering, taking no steps to prevent, or to grant leave by express consent or authorization: Holly Co. v. Simmons, 38 Tex. Civ. App. 124
(85 S.W. 325).”

We hold that ORS 607.045 is not violated unless the owner is at fault in permitting livestock embraced by the proscription to run at large. We further hold that the statute is violated not only where the livestock is permitted to go upon privately owned land but

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also where such livestock is permitted to go upon a highway.

The instruction given by the trial judge treating the violation of ORS 607.045 as negligence per se was erroneous and therefore the judgment must be reversed and the cause remanded for a new trial. Defendant’s contention that plaintiff was contributorily negligent as a matter of law is without merit.

Reversed and remanded.

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