Shaw v. Joyce

106 S.E.2d 459 (1959)

249 N.C. 415

Joe Barker SHAW v. Ramey (Raymond) JOYCE.

No. 665.

Supreme Court of North Carolina.

January 14, 1959.

J. H. Blalock and Edward N. Swanson, Pilot Mountain, for plaintiff appellant.

Wilson Barber, Mt. Airy, for defendant appellee.

RODMAN, Justice.

The measure of defendant's duty as owner of the mule to prevent it from roaming on the highway is concisely stated in Gardner v. Black, 217 N.C. 573, 9 S.E.2d 10, 11. It is there said: "The liability of the owner of animals for permitting them to escape upon public highways, in case they do damage to travelers or others lawfully thereon, rests upon the question whether the keeper is guilty of negligence in permitting them to escape. In such case the same rule in regard to what is and what is not negligence obtains as ordinarily in other situations. It is the legal duty of a person having charge of animals to exercise ordinary care and the foresight of a prudent person in keeping them in restraint." Similar declarations are found in Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 711; Lloyd v. Bowen, 170 N.C. 216, 86 S.E. 797; Pongetti v. Spraggins, 215 Miss. 397, 61 So. 2d 158, 34 A.L.R.2d 1277; Smith v. Whitlock, 124 W.Va. 224, 19 S.E.2d 617, 140 A.L.R. 737; 2 Am.Jur. 737, 738.

To establish defendant's negligent failure to keep the mule off the highway, plaintiff offered evidence that the mule was kept in a pasture to the rear of defendant's home and about 250 feet from the highway; the wire around the pasture was old, the gate was a "tobacco slide." The mule escaped from the pasture earlier on the day of the collision and on the night before the collision. Defendant knew of these escapes. Following the accident defendant stated "* * * he had a poor fence down there, a poor pasture where he kept his mules and cows * * *." This evidence sufficed to require submission of an appropriate issue to the jury.

Whether plaintiff was negligent in not seeing the mule before it came on the highway or in failing to exercise reasonable care to prevent the collision must be determined by a jury.

Reversed.