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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

SMITH v. MEYRING CATTLE CO.

Cite as 302 Neb. 116

Harley Smith, appellant, v. Meyring

Cattle Company, L.L.C., appellee.

___ N.W.2d ___

Filed January 25, 2019. No. S-18-184.

1. 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 below.

3. 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.

4. 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 

harmless.

5. Statutes. Statutes effecting a change in the common law should be 

strictly construed.

6. 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.

Appeal from the District Court for Box Butte County: Travis

P. O’Gorman, Judge. Affirmed.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

02/15/2019 01:05 AM CST
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

SMITH v. MEYRING CATTLE CO.

Cite as 302 Neb. 116

James R. Welsh and Christopher Welsh, of Welsh & Welsh, 

P.C., L.L.O., for appellant.

Steven W. Olsen and Jonathan C. Hunzeker, of Simmons 

Olsen Law Firm, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

A ranch 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.

BACKGROUND

Harley 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.

On the 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 chute.

Jerry Meyring, Jay’s father and co-owner of Meyring, 

herded the cattle into the holding pens. He then spent most 
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SMITH v. MEYRING CATTLE CO.

Cite as 302 Neb. 116

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 vaccinations occurred.

Occasionally, 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 workday.

According 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 forward.

Smith 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.”

Jerry 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.
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SMITH v. MEYRING CATTLE CO.

Cite as 302 Neb. 116

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.

Both 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.

Smith’s 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.

The 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 the directed verdict 

on the strict liability claim under § 54-601(1).

ASSIGNMENTS OF ERROR

Smith assigns that the district court erred in finding as a 

matter of law that § 54-601 did not apply to the facts of this 

case and in granting Meyring’s motion for partial directed verdict on the issue of strict liability.

STANDARD OF REVIEW

[1] In reviewing a trial court’s ruling on a motion for 

directed verdict, an appellate court must treat the motion as an 
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SMITH v. MEYRING CATTLE CO.

Cite as 302 Neb. 116

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.1

[2] 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 below.2

ANALYSIS

The question in this case is whether strict liability under 

§ 54-601(1) encompasses the act of a herding dog nipping 

at the heels of a cow, causing the cow to move forward, collide with a ranch employee, and inflict “bodily hurt” on the 

employee. Section 54-601(1) provides:

Dogs are hereby declared to be personal property for all 

intents and purposes, and, except as provided in subsection (2) of this section, the owner or owners of any dog 

or dogs shall be liable for any and all damages that may 

accrue (a) to any person, other than a trespasser, by reason of having been bitten by any such dog or dogs and (b) 

to any person, firm, or corporation by reason of such dog 

or dogs killing, wounding, injuring, worrying, or chasing 

any person or persons or any sheep or other domestic animals belonging to such person, firm, or corporation. Such 

damage may be recovered in any court having jurisdiction 

of the amount claimed.

Smith argues that he presented evidence from which a jury 

could have concluded that Meyring was liable by reason of 

Gunner “injuring . . . any person” as stated in § 54-601(1)(b). 

1 Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 

(2018).

2 Wisner v. Vandelay Investments, 300 Neb. 825, 916 N.W.2d 698 (2018).
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SMITH v. MEYRING CATTLE CO.

Cite as 302 Neb. 116

He points out that to “injure” has a broad definition of “‘to 

inflict bodily hurt on [someone or something],’”3 that standard principles of proximate causation apply in strict liability 

actions,4 and that an animal’s normal response to an action 

is not a superseding cause in the chain of proximate causation.5

 Regardless of the merits of these propositions in the 

abstract, we agree with the district court that Smith misinterprets § 54-601.

[3] We have long strictly construed § 54-601, and the 

Legislature has repeatedly acquiesced to our understanding 

of its intent.6 In particular, we have held that the meaning 

of each term in the list of acts by a dog which subject its 

owner to liability under § 54-601(1)(b)—currently, “killing, 

wounding, injuring, worrying, or chasing”—“is dependent on 

the other in the context that the Legislature chose to place 

them.”7 We have consistently explained that the relevant 

context was the Legislature’s intent in enacting § 54-601 to 

derogate from the corresponding strict liability common-law 

action only by eliminating the need to prove that the owner 

had knowledge of the dog’s dangerous propensities—and only 

as to the acts and persons described in the statute.8 Under 

the common-law strict liability action that was modified by 

§ 54-601 for those to which § 54-601 applies, a plaintiff 

had to demonstrate both (1) that the dog was vicious or had 

3 Grammer v. Lucking, 292 Neb. 475, 478, 873 N.W.2d 387, 389 (2016), 

quoting Merriam-Webster’s Collegiate Dictionary 601 (10th ed. 2001).

4 See, Staley v. City of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006); 

Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987); 5 

American Law of Torts § 18:36 (2016); 65 C.J.S. Negligence § 250 (2010).

5 See Brown v. Kaar, 178 Neb. 524, 134 N.W.2d 60 (1965).

6 See Underhill v. Hobelman, 279 Neb. 30, 776 N.W.2d 786 (2009).

7 Donner v. Plymate, 193 Neb. 647, 650, 228 N.W.2d 612, 614 (1975).

8 See, Guzman v. Barth, 250 Neb. 763, 552 N.W.2d 299 (1996); Paulsen 

v. Courtney, 202 Neb. 791, 277 N.W.2d 233 (1979); Donner v. Plymate, 

supra note 7.
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dangerous propensities and (2) that the owner knew the dog 

to be vicious or dangerous.9

[4,5] 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,10 because at common law, dogs 

are presumed harmless.11 The common law recognizes the right 

of the owner to keep a vicious dog for the necessary protection 

of life and property, but that one exercising the right to keep 

an inherently dangerous dog must do so at his or her own risk 

and be held strictly liable for any damage resulting to another.12

The vicious or dangerous nature of the dog is essential to 

such a claim.13 Statutes effecting a change in the common law 

should be strictly construed.14

Thus, we have held that the terms in the list of actions 

described in § 54-601(1)(b) must be “read together”15 in light 

of the context of the statute to provide for strict liability without proof of the owner’s knowledge of the dog’s “‘dangerous 

propensities.’”16 It is improper to read the words as “detached 

and separated.”17 Instead, “the meaning of each is dependent 

on the other.”18 And we have noted that many of the words 

9 See Netusil v. Novak, 120 Neb. 751, 235 N.W. 335 (1931). See, also, 

Paulsen v. Courtney, supra note 8; Lee v. Weaver, 195 Neb. 194, 237 

N.W.2d 149 (1976); Fritz v. Marten, 193 Neb. 83, 225 N.W.2d 418 (1975); 

7 American Law of Torts § 21:50 (2018).

10 See, e.g., 1 Restatement (Third) of Torts: Liability for Physical and 

Emotional Harm § 23 (2010); 4 J.D. Lee & Barry A. Lindahl, Modern Tort 

Law: Liability and Litigation § 37:4 (2d ed. 2006).

11 See 7 American Law of Torts § 21:52 (2018).

12 See Netusil v. Novak, supra note 9.

13 See, generally, id.

14 See Paulsen v. Courtney, supra note 8.

15 Donner v. Plymate, supra note 7, 193 Neb. at 650, 228 N.W.2d at 614.

16 Paulsen v. Courtney, supra note 8, 202 Neb. at 795, 277 N.W.2d at 235.

17 Donner v. Plymate, supra note 7, 193 Neb. at 650, 228 N.W.2d at 614.

18 Id.
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SMITH v. MEYRING CATTLE CO.

Cite as 302 Neb. 116

of this statutory list inherently entail violence or an intent to 

harm. Thus, a “‘wound’” is “‘[a]n injury of a person or animal 

in which the skin or other membrane is broken, as by violence

or surgery.’”19 To “‘worry’” is “‘to treat roughly as with continual biting’ or ‘to bite or tear with the teeth.’”20 To “‘chase’” 

under the statute has been defined variously as “‘to follow 

quickly or persistently in order to catch or harm,’” “‘to make 

run away; drive,’” or “‘to go in pursuit.’”21 In other words, 

the element that the dog be vicious or have dangerous propensities is implicitly part of the statute through these terms, 

read jointly.22

Because the acts described in § 54-601(1)(b) were intended 

to be understood as violent acts stemming from dangerous 

propensities, we have held that playful and mischievous acts 

of dogs directed toward the person sustaining bodily hurt 

were not encompassed by § 54-601.23 In Donner v. Plymate,

24

for example, we affirmed summary judgment in favor of the 

dog owner on a § 54-601 claim when the plaintiff sustained 

an injury after a dog collided with her knee in the course of 

chasing her playfully as part of the dog’s exercise. Similarly, 

in Holden v. Schwer,

25 we held that acts of a puppy playfully 

running after a three-wheeler and abruptly stopping in front 

of it, causing the driver to sustain injuries when she veered to 

avoid the puppy, were not encompassed by § 54-601. We have 

explained that “[o]bviously the Legislature was fully aware 

of the need for protection from the intentional, deliberate, 

19 Id. (emphasis supplied).

20 Id. (emphasis supplied).

21 Id. (emphasis supplied).

22 See, Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269 (1993); Paulsen v. 

Courtney, supra note 8; Donner v. Plymate, supra note 7.

23 See id. See, also, Underhill v. Hobelman, supra note 6.

24 Donner v. Plymate, supra note 7.

25 Holden v. Schwer, supra note 22.
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Cite as 302 Neb. 116

and purposeful acts of dogs and as a result restricted section 

54-601 . . . to those acts manifesting such qualities.”26

We have also explained in relation to the meaning of the 

language of § 54-601(1)(b) that “[t]he purpose of the original 

statute was to protect domestic animals, which are ordinary 

prey of dogs.”27 In fact, it was not until 1961 that the language 

of this “nonbiting” subsection of the statute was amended to 

apply to a “person or persons” “kill[ed], wound[ed], worr[ied], 

or chas[ed]” by the dog.28 Before that time, the provision here 

at issue encompassed only actions directed toward domestic 

animals owned by the plaintiff and allowed recovery only for 

damages caused by harm to such domestic animals.29 Before 

1961, bodily hurt sustained directly by a person fell under 

§ 54-601 only if such person had been bitten as described in 

subsection (1)(a) of the statute.

When the Legislature added “any person or persons” as 

an object of the dog’s acts described by § 54-601(1)(b), the 

Legislature clearly meant to expand compensability under the 

statute to harm to a person caused by acts other than biting, 

acts which manifested the dangerous propensities that are the 

historical foundation for the common-law strict liability claim. 

Thus, after the amendment, people could bring strict liability 

claims under § 54-601(1)(b) for injuries they sustained during falls precipitated by dogs “worrying, or chasing” them; 

whereas before, they could not.

That language, however, has never been understood as 

encompassing bodily hurt to a person by way of a dog worrying or chasing “any sheep or other domestic animals” that, 

in turn, collided with the person. Such behavior toward the 

dog’s “ordinary prey” has historically been compensable under 

26 Donner v. Plymate, supra note 7, 193 Neb. at 649-50, 228 N.W.2d at 614.

27 Id. at 649, 228 N.W.2d at 614.

28 See 1961 Neb. Laws, ch. 268, § 1, p. 786. See, also, Donner v. Plymate, 

supra note 7.

29 Id.
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§ 54-601 only if the owner of the “prey” sustained indirect 

damages by virtue of the harm to the animal. And, as stated, 

all the words of § 54-601(1)(b) must be read together in the 

context that the Legislature chose to place them.

To understand the statute more broadly, as Smith suggests, would vastly expand the scope of strict liability for 

dog owners. In fact, Smith’s proposed interpretation of the 

statute would effectively abrogate the common-law negligence 

action that has traditionally coexisted with § 54-601 and with 

the common-law strict liability action. A broad reading of 

the statute limited only by proximate causation and without 

any additional requirement that the dog’s behavior somehow 

manifest dangerous propensities would eliminate any reason 

for nontrespassing persons suffering bodily hurt to proceed in 

negligence, where they would have the additional burden to 

prove that the owner of the nonvicious dog should have reasonably anticipated the occurrence.30

To accept Smith’s suggested interpretation of the statute 

would make dog owners strictly liable for actions directed 

toward “ordinary prey” whenever the prey’s inadvertent physical harm to a bystander was part of that animal’s normal 

response to the dog. It would make cattle ranch owners susceptible to strict liability whenever a herding dog’s normal behavior directed toward a cow leads the cow to collide with and 

injure a ranch employee. Based on the history of the statute 

and the Legislature’s prior acquiescence to our understanding 

of the statute’s limited scope in light of such history, we cannot 

conclude that this was the Legislature’s intent. We have never 

held that a dog’s actions directed toward another animal can 

lead to strict liability under § 54-601 for bodily hurt to a person 

by way of such animal instrumentality.

[6] Perhaps Gunner’s alleged act of nipping at a cow’s 

heels is not properly characterized as “playful and mischievous,” but it was nothing more than the normal behavior of 

30 See Donner v. Plymate, supra note 7.
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a herding dog, which has never been considered vicious. In 

this case, unlike the cases where we have concluded that playful and mischievous acts do not fall under § 54-601(1)(b), the 

dog’s acts were not even directed toward the entity suffering 

the bodily hurt. Gunner had no direct contact with Smith, and 

there is no evidence that Gunner’s actions were in any way 

directed toward Smith. Indeed, this is our first occasion to 

address the applicability of § 54-601(1)(b) in circumstances 

where the dog’s acts were directed solely toward its “ordinary prey” and harm to the animal is not the basis for the 

plaintiff’s claim. Given that other words in § 54-601(1)(b)—

“worrying” and “chasing” “any person or persons or any sheep 

or other domestic animals belonging to such person, firm, 

or corporation”—entail action directed toward the injured 

person or toward the injured animal owned by the damaged plaintiff, we hold that “injuring” must also be limited 

to bodily hurt caused by acts directed toward the person or 

animal hurt.

Even resolving every controverted fact in Smith’s favor and 

giving him the benefit of every inference that can reasonably 

be deduced from the evidence,31 there was no evidence that 

Gunner bit Smith, worried Smith, or chased Smith. And while 

Smith allegedly was hurt by a cow that was put in motion by 

Gunner, there was no evidence that Gunner’s actions were 

directed toward Smith. There might be situations where a dog, 

in an act manifesting aggression toward a person, utilizes an 

instrumentality to cause the person bodily hurt, but this is not 

that case.

Whether Meyring should have foreseen that Gunner would 

attempt to herd cattle in an enclosed space and thereby injure 

one of its employees was a question of negligence that was 

properly presented to the jury. The district court did not err in 

concluding that the evidence presented did not fall within the 

purview of strict liability under § 54-601.

31 See Jacobs Engr. Group v. ConAgra Foods, supra note 1.
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CONCLUSION

For the foregoing reasons, we affirm the district court’s 

order granting a directed verdict in favor of Meyring on 

Smith’s statutory strict liability claim.

Affirmed.

Miller-Lerman, J., concurring.

I do not read our opinion herein as necessarily endorsing the 

majority opinion in Underhill v. Hobelman, 279 Neb. 30, 776 

N.W.2d 786 (2009), regarding “injuring” under § 54-601(1)(b), 

from which I dissented, and accordingly, I concur.