This car-cow collision case is concerned with summary judgment and res ipsa loquitur. ' '
.On the day of the accident cattle had .been worked on the south side of the highway and 25 to 30 cows had been brought to the north side of the highway through an underpass.. These cows had been put into a pasture north of and adjacent to the highway. The pasture was approximately 800 acres and 35 to 40 cows were in the pasture. One. of the cows got onto the highway, but the record does not show when. After it was dark, Gauna, a motorist, collided with it. Gauna died from injuries received in the collision. His personal representative sued defendant for wrongful death. In this appeal, no claim is made that defendant was not the owner of the cow which got onto the highway.
The pasture from which the cow escaped was .separated from the highway by a fence and a cattle guard. The briefs concede this to be an interstate highway. The fence and the cattle guard had been in- • stalled by a contractor for the State Highway Department and that department own*118ed and maintained the fence and cattle guard. Following the accident, it was determined that the portion of the fence inspected was in good repair. and that the cattle guard was “top pole,” “real good,” “in repair and not in disrepair.” The cow’s “tracks crossed the cattle guard;” and she was trailed “up to where she got hit.” “ * * * A cattle guard would ordinarily hold anything, hut it didn’t this one.”
On the basis of the foregoing, the trial court granted summary judgment; plaintiff appeals.
The basis of any liability on the part of defendant in this case is negligence. See Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966); Grubb v. Wolfe, 75 N.M. 601, 408 P.2d 756 (1965); § 40A-8-10, N.M.S.A.1953 (Repl.Vol. 6, Supp.1969); § 64-18-62, N.M.S.A.1953 (Repl.Vol. 9, pt. 2, Supp.1969); compare § 22-20-1, N.M.S.A.1953.
Defendant, the movant for summary judgment, had the burden of establishing the absence of a material issue of fact and that he was entitled to summary judgment as a matter of law. Sanchez v. Shop Rite Foods, 82 N.M. 369, 482 P.2d 72 (Ct.App.1971). In this case, defendant had the burden of establishing an absence of a material issue of fact on the question of negligence.
Defendant did not meet this burden. The facts before the trial court make a prima facie showing as to the means by which the cow got out of the pasture.. These facts, however, do not make a prima, facie showing of no negligence, (see N.M. U.J.I. 12.1) on the part of defendant because they show nothing as to action, inaction or foreseeability on the part of defendant in connection with the means of escape. Compare Martin v. Board of Education of City of Albuquerque, 79 N.M. 636, 447 P.2d 516 (1968).
The summary judgment was improperly granted because defendant did not make a prima facie showing that he was entitled to summary judgment. Sanchez v. Shop Rite Foods, supra; compare Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (Ct.App.1970).
Res Ipsa Loquitur.
Because of the emphasis placed on res ipsa loquitur, both in the trial court and in this appeal, and because the summary judgment was erroneous, we briefly discuss this doctrine.
It is plaintiff’s contention that under this doctrine he may go to the jury in this case upon a showing .that defendant’s cow was on the' highway; that the highway was fenced' and that decedent’s car collided with the cow. This is a misreading of Mitchell v. Ridgway, supra. In that case, the horse escaped from the defendant’s corral; the highwáy was not fenced at this point. Our Supreme Court held the facts in Mitchell were sufficient to avoid a non-suit; that the trial court erred in dismissing the suit “ * * * for failure to state a claim upon which relief could be granted. * * * ” When the dismissal is for failure to state a claim upon which relief can be granted, the issue is whether the plaintiff would be entitled to recover under any state of facts provable under the claim that is made. Pattison v. Ford, 82 N.M. 605, 485 P.2d 361 (Ct.App.1971). No such question is involved in this case.
In holding a cause of action was stated, Mitchell v. Ridgway, supra, referred to res ipsa loquitur and indicated the doctrine could be applicable in car-cow collision cases. For it to be applicable:
“ * * * The plaintiff must still fulfill the burden of satisfying the court, or the jury, that the accident was of a kind which ordinarily does not occur in the absence of someone’s negligence, and that the agency or instrumentality, in this case a domestic animal, was within the exclusive control of the defendant. * * * »
If plaintiff fails to establish the essential elements of the doctrine, it would *119not be available to make a prima facie case of liability. Hisey v. Cashway Supermarkets, Inc, 77 N.M. 638, 426 P.2d 784 (1967).
Thus, under the New Mexico Supreme Court decisions, plaintiff would not be entitled to go to the jury in this case upon a showing that defendant’s cow escaped through a Highway Department cattle guard and was upon the highway, causing the collision. To get to the jury, there must be evidence tending to establish the elements of res ipsa loquitur. Mitchell v. Ridgway, supra.
It would not be different in a summary judgment situation. If defendant makes a prima facie showing entitling him to summary judgment, plaintiff, to defeat summary judgment, must then show there is a factual issue. Rekart v. Safeway Stores, Inc, supra. Plaintiff could do this by showing there are facts tending to establish the elements of res ipsa loquitur. If there is no showing that a factual issue exists as to the elements of the doctrine, the doctrine would not be available to defeat the summary judgment. Thus, the facts on which plaintiff relies here would not defeat a summary judgment, once a prima facie showing supporting summary judgment is made by defendant, because these facts do not tend to establish the elements of res ipsa loquitur.
The summary judgment is reversed. The cause is remanded for further proceedings consistent with this opinion.
It is so ordered.
HENDLEY, J, concurs.
SUTIN, J, specially concurring.