Bombard v. Newton

Powers, J. [1, 2] The plaintiff had as good a right to drive his cows along the highway as the defendant had to drive his automobile over it. Robinson v. Flint, etc., R. Co., 79 Mich. 323, 44 N. W. 779, 19 A. S. R. 174; Smith v. Matteson, 41 Hun. 216. The parties had equal and reciprocal rights to the use of the road, and each owed the other the duty of so exercising his own right as not to interfere with that of the other. Aiken v. Metcalf, 80 Vt. 196, 97 Atl. 669. The fact that it was in the nighttime affected the rights of the parties only as it bore upon the amount of vigilance each was bound to exercise. The fact that the defendant was operating an automobile, an instru [357] mentality whose capacity for harm is well exemplified by the results in this case, and the fact that the plaintiff was driving cows, animals whose viatic vagaries have come to be known of all automobile drivers, were conditions affecting, merely, the degree of care required of the parties respectively. [3] On the question of the-defendant’s negligence, the court found that he, was driving at an excessive rate of speed, and that he negligently failed to discover the cows in time to avert the accident. These findings are fully supported by the evidence. As to the first, the defendant admitted that he was going “about” twenty-five miles an hour; and the results of the catastrophe indicate rather strongly that he underestimated his speed. The cows were walking along the road, one behind the other. The one ahead was spoken of as “the big cow.” The automobile struck her on her right side as she turned east, and threw her into the middle of the road in a dying condition. As a result of this collision, the car skidded, and as the rear end swung around sharply to the left, it struck the other cow, killing her instantly and casting her dead body a distance of 57 feet to the north and west. The machine itself, at a point 40 or 50 feet from where it struck the first cow, shot across the road to the right and buried its front end in the bank. Surely, all this was enough to support the first of the above findings. As to the other, the defendant testified that he did not see the big cow until he was within about 15 feet of her. Yet the road was straight and level, and, according to the evidence, his headlights were. in good condition and lighted the road ahead throughout its full width for a distance of 18 or 20 rods. The cow was walking in the west wheel track, which was the side on which she belonged, and, if the defendant had been exercising anything like the watchfulness that the circumstances demanded of him, he should have sooner discovered the cow in the road. [4] . Nor can we sustain the defendant’s claim that there was no evidence tending to show that the plaintiff was in the exercise of due care. We agree that contributory negligence would defeat the action, and that the burden of proof was on the plaintiff. But direct or affirmative evidence to this point is not required. Ryder v. Vt. Last Block Co., 91 Vt. 158, 99 Atl. 733. All that is necessary is that enough be shown to warrant an inference of due care. Cross v. Fiber Leather Co., 90 Vt. 397, 98 Atl. 1010. [358] [5] The case before us shows that the two cows were walking quietly along on the right hand side of the road, in charge of the plaintiff’s employee. The big cow was in the wheel track as .stated above; the other was walking a little outside of the track. The man was walking at the side of the latter cow with his hand on her hip. It was in the evening. The cows were giving the attendant no trouble whatever, being “good handlers,” as the plaintiff put it. They were not roped or haltered, nor did the man have a stick or whip with which to guide them. There was nothing unusual in the method used. There is nothing to indicate that unusual methods were required. Everything was going well, until the automobile came on to them, swerving toward their side of the road, when, apparently, the big cow was frightened by it and turned to the left. Complaint is made that the man did nothing to get the cows out of the way when he saw the machine approaching. The law did not require him to. He was rightfully there, and had a right to assume that the driver of the car would give him his share of the road. When he discovered that there was going to be a collision, it was too late to act. It is suggested that he ought to have carried a light. But the law does not expressly require it, and we cannot say as matter of law that it was necessary. Indeed, a light would not have saved him, for, as we have seen, the-lights of the automobile brought him into the driver’s plain view when the ear was yet 18 or 20 rods away. The mere fact that the cows were being driven instead of being led, is not conclusive. Fitzsimmons v. Snyder, 181 Ill. App. 70; Bewernitz v. Detroit, etc., Ry., 195 Mich. 528, 161 N. W. 976, L. R. A. 1917 E, 767. The simple truth is that the whole question is one of fact. It is one of those practical questions especially adapted to the consideration of men of common sense and experience, and cannot be ruled as a question of law. Judgment affirmed.