Hansen v. Kemmish

Supreme Court of Iowa · 1926 · Torts

TortsNegligenceAnimals running at largeContributory negligenceStatutory violationsprima facie negligenceboar on highwayrunning at large

Facts

The plaintiff was driving east at about 7:30 p.m. on a starlit evening with his lights on when his car struck the defendant's boar on the highway and overturned. Plaintiff testified he did not see the hog until immediately before impact; weeds and a ditch bordered the north side of the road, and the hog appeared suddenly in front of the car. A passenger testified the hog came out of the ditch on the north side and moved south 6 to 8 feet before the collision while the car was traveling around 25 to 30 miles per hour. There was conflicting testimony about the adequacy of the plaintiff's lights and the defendant offered evidence that he had exercised care in confining the animal.

Issue

Whether the owner of a boar found at large on a highway is absolutely liable under the restraint statute, or only prima facie negligent with an opportunity to show reasonable care in restraining the animal. Also, whether the plaintiff's allegedly inadequate automobile lights made him contributorily negligent as a matter of law so as to justify a directed verdict.

Rule

Under the Iowa statute requiring owners of boars to restrain them, a defendant is prima facie negligent when his boar is at large on the highway, but he may rebut that showing by proving he exercised reasonable and ordinary care in restraining the animal. In deciding negligence, the jury may consider the restraint statute, fence laws, the animal's character and habits, the defendant's preventive measures, and all attendant circumstances. A plaintiff's failure to comply with the statutory lighting requirement, or otherwise to use reasonable care in maintaining lights, bars recovery only if that negligence contributed to the injury.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Outside Ames, Iowa, Nolan Pierce kept a mature boar in a fenced pen behind his farm. One evening the boar was found wandering on a county highway, where Dana Wu's car struck it and was damaged.

If Dana sues Nolan for negligence based solely on the boar's presence on the highway, which is the strongest statement of the governing rule?

Explanation. The majority held that a boar's presence at large on the highway establishes only a prima facie case of negligence, not conclusive negligence. The owner may offer evidence that he exercised reasonable and ordinary care in restraining the animal. The case rejects automatic liability on these facts.