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Smith v. Meyring Cattle Company, L.L.C.

Supreme Court of Nebraska

January 25, 2019

Harley Smith, Appellant,
v.
Meyring Cattle Company, L.L.C., Appellee.

         1. Directed Verdict: Appeal and Error. In reviewing a trial court's ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

         3. Animals: Liability: Legislature: Words and Phrases. The meaning of each term in the list of acts by a dog which subject its owner to liability under Neb. Rev. Stat. § 54-601(1)(b) (Reissue 2010)-currently, "killing, wounding, injuring, worrying, or chasing"-is dependent on the other in the context that the Legislature chose to place them.

         4. Animals: Liability. The common-law basis for strict liability for the acts of one's dog depends upon establishing that the dog has dangerous propensities or tendencies, because at common law, dogs are presumed harmless.

         5. Statutes. Statutes effecting a change in the common law should be strictly construed.

         6. Animals: Liability: Words and Phrases. "Injuring" under Neb. Rev. Stat. § 54-601(1)(b) (Reissue 2010) is limited to bodily hurt caused by acts directed toward the person or animal hurt.

          Appeal from the District Court for Box Butte County: Travis P. O'Gorman, Judge. Affirmed.

          [302 Neb. 117] James R. Welsh and Christopher Welsh, of Welsh & Welsh. PC, L.L.O., for appellant.

          Steven W. Olsen and Jonathan C. Hunzeker, of Simmons Olsen Law Firm, PC, L.L.O., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          FREUDENBERG, J.

         NATURE OF CASE

         A ranch employee was injured, allegedly as a result of the ranch's herding dog nipping at a cow, causing the cow to charge into the employee. The question presented is whether, as a matter of law, such allegations fall outside the strict liability statute, which states in relevant part that the owner or owners of any dog or dogs shall be liable for any and all damages that may accrue to any person, firm, or corporation by reason of such dog or dogs killing, wounding, injuring, worrying, or chasing any person or persons.

         BACKGROUND

         Harley Smith worked for the Meyring Cattle Company, L.L.C. (Meyring), and was injured in an accident that occurred in December 2011. He sued Meyring under negligence theories and also under strict liability as set forth in Neb. Rev. Stat. § 54-601(1) (Reissue 2010), alleging damages accruing from a Meyring herding dog "injuring" him. During a jury trial, the following evidence was adduced.

         On the day of the accident, Smith had been pouring a lice control product on cows' backs, while Jay Meyring, a co-owner of Meyring, vaccinated them and another employee tagged them. This process involved herding cattle into holding pens, moving a few cows at a time into a "tub," and then guiding them from the tub into an alley that led into a chute.

         Jerry Meyring, Jay's father and co-owner of Meyring, herded the cattle into the holding pens. He then spent most [302 Neb. 118] of the day moving them in small groups into the tub and then into the alley. From a platform outside the alley, Smith poured the lice control product onto the cattle as they moved in the alley toward the chute, where the tagging and vaccinations occurred.

         Occasionally, when Jerry had to move more cattle into the holding pens from "the hill" where the herd congregated, Smith was placed in charge of moving the small group of cows from the tub into the alley. Smith was performing that task at the time of the accident, which occurred near the end of the workday.

         According to Smith, there were two cows left in the tub. Smith moved toward the alley to see how many cows were inside. At that time, one cow moved past Smith from the tub into the alley. The other cow was still near the gate opposite the alley. Smith testified that he then saw the herding dog named "Gunner" on the outside of the gate leading into the tub, "nipping" or "snapping" at the remaining cow's hooves through a 6-inch opening at the bottom of the gate. Smith stated the cow immediately charged forward.

         Smith was trampled by the cow and sustained extensive injuries. Smith was found lying in the middle of the alley with three cows in front of him and one behind. Smith did not clearly describe how he got there but stated that it was the result of being knocked down by the cow that Gunner had nipped. Smith opined that the only reason the cow had "charged" at him was that Gunner was "nipping on the bottom of its foot."

         Jerry confirmed that the herding dogs at the ranch were bred and trained to nip at the heels of cattle, which is designed to make the cattle move away from the dog, or "escape" in a "flight response." Meyring's herding dogs were not allowed to be near cattle in enclosed areas. That, Jerry conceded, would create a danger, especially if a person was in the enclosed space with the cattle.

          [302 Neb. 119] Gunner was trained to stay away from the enclosed tub/ alley/chute area and instead lie down by the "chute house" some distance away. Jay testified that he had never had any trouble with Gunner staying where he was supposed to be. Jay, Jerry, and another employee who testified had never seen Gunner around the tub area, and they did not see him there on the day of the accident.

         Both Jay and Jerry testified that Smith should have never entered the alley and that there were several other avenues of escape from an agitated cow in the tub. Evidence was presented that the cow in question did not appear agitated immediately after the accident, and Jerry suggested that the tub was not large enough for any cow to build up significant speed. Jay testified that Smith should not have been near the alley, looking in, because that was not part of the process.

         Smith's girlfriend at the time of the accident testified that she and Smith had stayed up the night before the accident "getting high on methamphetamine" and that Smith "smoked another bowl of meth" on his lunch break. There was medical evidence that Smith was under the influence of methamphetamine at the time of the accident.

         The district court granted Meyring's motion for a directed verdict on the strict liability claim under § 54-601. Smith's negligence claims were submitted to the jury, which rendered a verdict in favor of Meyring. Smith appeals ...


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