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
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.
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
Statutes. Statutes effecting a change in the
common law should be strictly construed.
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.
from the District Court for Box Butte County: Travis P.
O'Gorman, Judge. Affirmed.
Neb. 117] James R. Welsh and Christopher Welsh, of Welsh
& Welsh. PC, L.L.O., for appellant.
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.
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.
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.
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
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
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
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
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."
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.
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.
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.
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.
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