Opinion
November 16, 1955.
Appeal from Madison County.
The action was brought to recover for personal injuries and property damage sustained by the plaintiffs when a heifer owned by the defendant, which had escaped from the defendant's pasture onto the highway, struck an automobile truck in which the plaintiffs were riding. The jury reported a verdict of no cause of action. The sole evidence on the point was to the effect that the fence on the highway side of the defendant's pasture was adequate so there was no basis for a finding that the defendant had been negligent in allowing the cow to escape. The sole question in the case was whether there was any negligence on the part of the defendant in the manner in which he sought to recapture the cow after its escape. In its charge, the court correctly defined negligence, and then charged that if "the heifer in question was unattended at the time of the accident then the defendant is guilty of negligence"; also, that it was the duty of the defendant to "use that degree of care to restrain it that an ordinary prudent person would have used under the same circumstances". No exception was taken to the court's charge but the plaintiffs' attorney asked the court to charge that "regardless of the rule of law you announced — prima facie evidence of negligence — the jury can take into consideration the acts of Mr. Harvey that morning as constituting acts of negligence". This request was refused "except insofar as I have already charged". The requested charge was not clear and the trial court was justified in denying it. While the court's charge was not as explicit as it might have been, no exception was taken to it and the granting of the request would not have helped to clarify the issue for the jury's consideration. Judgment affirmed, with costs. Foster, P.J., Bergan, Coon and Halpern, JJ., concur; Zeller, J., taking no part.