David v. Ziegler

Robert H. Dudley, Justice. This is a tort suit involving a collision between a car and a horse. David Sanford and Gayle Sanford, the defendants below, own a pasture. On October 5, 1989, David Sanford was keeping three of his horses in the pasture, which was some distance from the Sanfords’ home. The grass in the pasture was short in October, and each day the Sanfords drove their pickup truck from their home to the pasture to supplement the horses’ feed with both hay and grain. The pasture is enclosed by a relatively new fence that has fenceposts made of steel. The gate is a metal panel gate that has a cross support. A chain with two snaps is attached to the gate so that it can be secured when it is closed. The horses had never escaped from the pasture. David Sanford testified that between five and six o’clock on the evening of October 4, the evening before the accident, he, his wife Gayle, and his daughter drove to the pasture to feed the horses. He testified that after they fed the horses, his daughter latched the gate, and he checked it to be sure that it was securely latched. It was securely latched, and they drove home. Shortly after 6:30 the next morning, the gate had been opened somehow, and the horses were out of the pasture and on the adjacent roadway. The plaintiff was driving her car along the road and collided with one of the horses. As a direct result of the collision, the plaintiff suffered personal injury, as well as property damage to her car. The plaintiff filed suit against both defendants and pleaded that they had been negligent in “permitting a horse to run at large” and in “creating a public nuisance.” At trial, only two witnesses testified, plaintiff Ziegler and defendant David Sanford. Their testimony is set out above. Although the record does not include the instructions given by the trial court, it seems clear enough from the comments of the attorneys, as well as the comments of the trial court, that the jury was instructed on ordinary negligence. The jury returned a verdict for the plaintiff. The defendant appeals. We reverse and dismiss. The plaintiff had the burden of proving that she sustained damages, that the defendants were negligent, and that such negligence was the cause of her damages. Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989). There is no question that plaintiff sustained damages. The issue is whether there was substantial evidence of the defendants’ negligence. Negligence is the failure to do something which a reasonably careful person would do. A negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992). The standard of review on appeal of a jury’s verdict is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). In this case, giving the verdict the benefit of all reasonable inferences permissible under the proof, we cannot say there was any evidence whatsoever of negligence by either David or Gayle Sanford. Appellee, the plaintiff below, argues that the jury was free to find that David Sanford “did not sound truthful.” It was, of course, within the jury’s province to believe or disbelieve the testimony of any witness. Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1990). However, even if the jury chose to disbelieve Sanford’s testimony, such would not constitute substantial evidence of negligence, and, as stated, the plaintiff had the burden of proof on this issue. Reversed and dismissed. Hays, Corbin, & Brown JJ., dissent.