
    Dollarhide v. Knight.
    Jan. 28, 1953
    No. 38637
    17 Adv. S. 7
    62 So. 2d 367
    
      Norman G. Brewer, Jr., for appellant.
    
      
      Robertson Horton, fox appellee.
   McGehee, C. J.

The main question involved on this appeal is whether or not the trial court was in error in granting a peremptory instruction in favor of the appellee, J. H. Knight, who was the defendant in the case. As in the case of Pongetti v. Spraggins, 215 Miss. 397, 8 Adv. S. 14, 61 So. 2d 158, the plaintiff, Roger Dollarhide, based his suit for damages to his automobile upon Chapter 200, Laws of 1948, Sec. 4876.5, Code of 1942, since the damages were caused by the presence of a drove of mules on IT. S. Highway No. 51 in the nighttime, about three miles north of the City of Winona where the State Livestock Law was in full force and effect in Montgomery County.

It was alleged and proved by tbe plaintiff that at about 8:45 p. m. on August 13, 1951, when tbe plaintiff was approaching tbe City of Winona from tbe north and driving bis automobile in a careful and lawful manner and at tbe proper rate.of speed, be suddenly encountered tbe presence of tbe mules on tbe highway, ran into them, without fault on bis part, and damaged bis automobile to tbe extent of $1,236.91, representing tbe cost of repairing tbe same, and to tbe further extent of $500, difference in tbe value of tbe automobile before tbe collision and after tbe repairs bad been made thereto.

Tbe defendant on bis part offered proof, which was wholly uncontradicted, that be bad rented tbe pasture in which be undertook to keep tbe mules enclosed, and that there was a good fence consisting of four strands of wire and posts in good condition at tbe place where tbe mules got out of tbe pasture on tbe night in question; that tbe defendant bad returned home from Greenwood that evening immediately before tbe accident and received a telephone call from a person who advised him that tbe mules were at that time getting out of tbe pasture by breaking tbe wires of tbe fence; that be immediately left bis home, which was about two miles from tbe scene of tbe accident, and got to tbe broken place in tbe fence in time to follow tbe mules over tbe bill where they were run into by tbe plaintiff’s automobile. There was no proof offered in rebuttal by tbe plaintiff to show that tbe posts or wires of tbe fence were defective in any manner. In fact, it is not shown that there was anything wrong with tbe posts, but that tbe wires were broken in two and about nineteen mules got out at that place and onto tbe highway; and that the defendant did not build tbe fence but bad been renting tbe pasture from its owner for about thirty days and during which time none of tbe mules bad gotten out of tbe enclosure.

Tlie only difference between the instant case and that of Pongetti v. Spraggens, supra, is that in the latter case it appeared that the calf there involved could not have gotten out of the enclosure of the defendant, Spraggens, by its own efforts, and that someone other than Spraggens, and without his knowledge or consent, had evidently left the calf out of the enclosure or removed it from the enclosure. In neither case, was it shown that the defendant had “permitted’ ’ an animal to run at large on the highway within the meaning of the statute involved. We deem it unnecessary to again discuss the meaning of this statute and the line of decisions that we followed in Pongetti v. Spraggens, supra, since the meaning of this statute was fully discussed in that case.

Suffice it to say, there is no proof in the instant ease, as there was none in that case, to show that the animal or animals got on the highway through the negligence of the owner. We are therefore of the opinion that this former decision is controlling here in that a defendant in such a case is only required not to permit his livestock to run at large on the highway through any act of negligence on his part.

It therefore follows that the action of the trial court in granting a peremptory instruction in favor of the defendant was not erroneous, and that the case must therefore be affirmed.

Affirmed.

Hall, Holmes, Arrington, and Lotterhos, JJ., concur.  