APPEAL from the Circuit Court of Fulton County; the Hon. KEITH
F. SCOTT, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
This action was brought by Walter Unzicker, owner of a truck, and Roger Kennell, driver, to recover damages occasioned by the alleged negligence of the defendant, Wayne Chambers. The circuit court of Fulton County entered a summary judgment in favor of the defendant from which plaintiffs appeal.
The essential allegations of the complaint in this case were: on March 20, 1969, at about 10:00 P.M., Kennell was driving Unzicker's truck in an easterly direction on state highway 9, in Fulton County. At that time the defendant, while operating his motor vehicle, was driving two Black Angus cows in a westerly direction along or upon highway 9. Plaintiffs, in separate counts each alleged a duty on the part of the defendant to drive, herd or corral the cattle in such a manner as not to endanger others on the highway and then claimed the defendant was guilty of the following:
(a) The defendant drove the cattle upon the highway at night knowing they could not be seen or detected by oncoming motorists;
(b) He permitted and allowed the cattle to enter the lane of traffic for motor vehicles proceeding east on the highway knowing that the cattle could not be seen or detected by the oncoming motorists;
(c) He failed to take precaution to prevent a collision between the cattle and motor vehicles on the highway; and
(d) He failed to give warning to oncoming motorists of the hazard created when he drove the cattle on the highway, when he knew, or should have known, that plaintiff's motor vehicle was approaching.
The plaintiffs further alleged that as a proximate result of the negligence of the defendant a collision occurred, resulting in damages.
The defendant filed a Motion for Summary Judgment, attaching to the Motion a copy of defendant's discovery deposition.
The discovery deposition was taken by plaintiffs and defendant therein deposed that:
"He lived on a farm, on Route 9, on the south side of the road at the extreme eastern edge of McDonough County and while at home on the evening in question, an unknown person drove into the yard and told him there were some cows out on the road down east of him. He got his pickup truck and drove east on Route 9 about a quarter of a mile. He first saw two black cows walking slowly on the south side of the road on the shoulder, off the cement, going west. He was then only about 20 feet from the cows as the headlights did not pick them up sooner and there was no moon. He continued east to a farm driveway, turned around and came back. When he got back the cows were still going west, moving at a fast trot and were on the south edge of the road and on the cement in the eastbound lane about 100 feet from where he first saw them. They were going `lickety cut on their own will'. I don't know what made them run, I don't know if they were afraid of me."
The following then appears on the deposition:
"Q. All right, what did you do then?
A. Well, I thought if I could get ahead of them, see, right down, oh, must be 50 or 60 feet east of the bridge there is a county line road between Fulton and McDonough County * * *. I thought if I could head them off the road and at that time the truck came over * * * he couldn't see anything * * * if I had anything to signal with and I thought I couldn't catch up with the cows, I thought, well, he's going to hit the ...