LINCOLN — A Morrill, Nebraska, trucker figured he had to keep moving with his load of 94 cattle, so much so that he left the scene of a personal injury accident in November 2017 that he was involved in.
But Friday, the Nebraska Supreme Court rejected the argument of Kelly Schmaltz that he was justified in leaving the scene to avoid “loss or injury” to the cattle.
The court, in an eight-page ruling, found that his “choice of evils” defense didn’t apply in the accident and affirmed his conviction for leaving the scene of an accident, a Class IV felony.
While state law allows, in limited circumstances, conduct believed necessary to avoid “harm or evil to himself or another” if the harm being avoided is greater than the act preventing it, Scotts Bluff County District Judge Leo Dobrovolny had ruled that such a defense cannot be used for property like livestock.
The Supreme Court agreed, and affirmed a guilty verdict delivered by a Scotts Bluff County jury. Schmaltz was sentenced to 12 months of probation and a year’s suspension of his driver’s license, and was ordered to pay restitution to the driver he crashed into.
Schmaltz, according to his attorney Bell Island, left the scene because he was concerned that some of his cattle would suffocate after being thrown onto each other in the collision. Island said that his client saw that others were rendering aid to a driver injured in the collision, so he drove to a cattle yard a couple of miles away to unload his semi trailer.