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Torts No. 13-01-234-CV, 6/12/2003. Click here for the full text of this decision FACTS: Wesley Goode and Marcy Parkinson sued W. H. Bauer a/k/a The LaSalle Ranch after Goode’s vehicle hit a cow on Highway 185 in Calhoun County with resulting personal injuries. The case was tried to a jury that found against the plaintiffs, the appellants here, and a take-nothing judgment was accordingly entered. The appellants challenge the trial court’s refusal to submit their requested instruction, “that the law provides that a person may not permit a head of cattle to run at large in Calhoun, County, Texas,” and that a failure to comply is “negligence in itself.” HOLDING: Affirmed. The appellants argue that Texas Agriculture Code �143.074 is violated if the appellee “permitted” his livestock to run at large, and a violation of the statute is a breach of a common law duty sufficient to impose liability. The appellants argue that it was improper for the judge to impose a higher burden on them and to require the jury to find the appellee “knowingly” permitted his stock to roam at large in order to be liable. The appellants’ theory of the case is that to permit one’s cattle to run at large is a violation of �143.074 and as such is negligence per se, or negligence as a matter of law. There is no common-law duty in Texas for an owner of livestock to restrain his animals within fences. Gibbs v. Jackson, 990 S.W.2d 745 (Tex. 1999). Any duty to restrain livestock is statutory. There are essentially two types of statutes that address an owner’s obligation regarding livestock: 1. �143.102 of the agriculture code, prohibiting all owners of livestock to knowingly allow their animals to roam at large on the right of way of a state or federal highway in Texas, regardless of whether the local county has adopted the stock laws requiring the restraint of livestock; and 2. “stock laws” in those counties that have adopted them. In those counties that have adopted the stock laws by local election, an owner of livestock may not permit the stock to run at large under �143.074 of the agriculture code; and if he does so knowingly, he is guilty of a misdemeanor under �143.082. Several factors determine whether the violation of a criminal statute gives rise to negligence per se. The primary ones are whether the plaintiff is in the class of persons the statute was designed to protect, and whether his injury is the type of injury the statute was designed to prevent. Reeder v. Daniel, 61 S.W.3d 359 (Tex. 2001). Additional considerations include whether the statute is the sole source of any tort duty or whether it merely supplies a standard of conduct for an existing common law duty; whether the statute puts the public on notice by clearly defining the required conduct; whether the statute would impose liability without fault; whether negligence would result in ruinous damages disproportionate to the seriousness of the statutory violation; and whether the plaintiff’s injury is a direct or indirect result of the violation of the statute. The court holds that a violation of �143.074 will not constitute negligence per se. Section 143.074 is not a penal statute; rather, it creates a duty on the keepers of livestock in counties that have adopted local stock laws to restrain their cattle. It is designed to protect all persons and property from wandering animals, not just motorists. Section 143.102 is a specific prohibition against animals roaming at large on state or federal highways. The plaintiffs are not in the category of persons that �143.074 was specifically designed to protect. No standard of care is stated in �143.074; instead, the construction desired by appellants would create the equivalent of strict liability for the owner of livestock that happen to stray. However liability for a violation of the stock laws has always required more than the presence of the defendant’s animals in a forbidden place. The Texas Supreme Court has held that the presence of a horse on a U. S. highway does not create a presumption that the owner is negligent. Beck v. Sheppard, 566 S.W.2d 569 (Tex. 1978). The courts have been universal in holding there must be some fault on the part of the owner of the animal that strayed onto a highway whether the county had adopted stock laws or under the statutory prohibition of livestock running at large on federal or state highways. Because the Legislature has adopted a standard of criminal culpability does not necessarily mean that the supreme court must adopt that as a standard of civil liability. Carter v. William Sommerville and Son Inc., 584 S.W.2d 274 (Tex. 1979). The negligence of the keeper of livestock in failing to properly restrain his animals is the usual basis for imposing liability when there is a statutory duty to restrain. A violation of the statute requiring restraint of animals in stock law counties does not create a prima facie case for recovery so as to require the owner of livestock to prove an excuse or explanation for the animals’ escape. Davis v. Massey, 324 S.W.2d 242 (Tex. Civ. App. – Waco 1959, no writ). The trial court did not err in refusing to submit the requested instruction and question to the jury, the court concludes. OPINION: Dorsey, J.; Valdez, C.J., Rodriguez and Dorsey, JJ.

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