Graber owned cows. His neighbors testified they had repeatedly seen cows outside Graber’s fence, either on neighboring property or on the highway. Some neighbors testified that they had repeatedly called Graber to notify him that cattle had left his property. Evidence showed that Graber himself believed that strangers had opened his gates on several occasions, but he declined to add locks because, as he described to one witness, he was “kind of lazy” and it was too much trouble to lock and unlock gates.
Instead, he used only twine to secure the gates.
Moe was driving on a rural highway on a dark, overcast night. He noticed a car driving about 150 feet in front of him flash brake lights. He saw a cow about 20 feet in font of him. It was too late. He could not avoid the collision.
A responding officer followed a trail of blood and cow feces from the scene of the accident to an open set of gates, confirmed that the cows were in the pasture, and secured the gates with twine he found on the ground.
Neighbors testified that twine was not reasonable to secure cows. Even one of Graber’s own witnesses admitted that a reasonable owner of property adjacent to a public highway should have put locks on his outside gates.
Graber claimed in an attempt deflect blame away from himself that a phantom person or persons committing theft or vandalism caused the cow to escape. Even if true, if cows had previously escaped or vandals had previously opened the gates, this further supports the conclusion that Graber failed to take reasonable care to prevent the escape of cattle. Graber’s own witness testified that proper gates would have helped to prevent trespassers.
Theft of Graber’s cattle would have required a large vehicle and a large number of people. It would be difficult to perform such a feat on a dark night. No cows were missing from Graber’s property. No person testified that they saw any other person or vehicle at the time of the collision, or to seeing any evidence of vandalism or theft, or that there had ever been a theft of cattle at any property in the region.
Graber was found 85 percent at fault and Moe 15 percent at fault. The result was upheld on appeal.
by person injury attorney Travis Scott Eller
 Moe v. Graber, unpublished (No. 64829-2-I July 25, 2011).