holding that sufficient evidence existed to submit the case to the jury when the defendant's ponies escaped from a fenced-in area and ran onto the highway and that after the accident, the owner discovered the gate open and a wire used to secure the gate missing
How later courts described this case
- holding that sufficient evidence existed to submit the case to the jury when the defendant's ponies escaped from a fenced-in area and ran onto the highway and that after the accident, the owner discovered the gate open and a wire used to secure the gate missing
Written by the judges who cited it.
The opinion
Stern, J.,
dissenting. In its opinion, the majority 'states that: “Since it is ‘some evidence of negligence’ to turn animals into a field with defective fencing, it is also évidence of negligence to leave open a gate to the animals’ enclosure.” There is one major fault with that comparison — the record in the instant case is devoid of any evidence, direct or circumstantial, as to who was responsible for the gate to appellee’s enclosure being open.
■ Unless this court is prepared to infer that appellee was negligent as a matter of law solely by virtue of the fact that the gate was open, I find the syllabus in Gedra v. Dallmer Co. (1950), 153 Ohio St. 258 , 91 N. E. 2d 256 , to be controlling. Since the appellants have failed to show that the ponies escaped because of some breach, by appellee, of his duty of due care, I would affirm the judgment of the Court of Appeals.