Jewett v. Gage

The owner or possessor of swine must take care at his peril that they do not run at large in the highway without a keeper. Where the plaintiff’s minor daughter, with a suitable horse and carriage, and in the exercise of ordinary care, was travelling along a highway, and the horse, by becoming frightened at the looks of a hog owned by the defendant, and by him permitted to be in the highway without a keeper, occasioned an injury to the daughter and carriage, — Held, that the owner, or he who had control of the hog, was liable for the injury, although he did not know the hog was in the highway at the time of the injury.

On Exceptions. Case, for an injury to tke plaintiff’s wagon and minor daughter, by reason of his horse taking fright at the defendant’s hog, which was lying by the side of the highway in Benton, without a keeper. The plaintiff asked one of his witnesses if he had seen the hog at large in the road, before the d'ay of the accident, to which the defendant’s counsel objected. The plaintiff’s counsel said he offered the evidence to meet the point set up in the specifications of defence, that the defendant did not know his hog was at large in the highway. Defendant’s counsel thereupon withdrew the specification, and the evidence was waived. The presiding Judge instructed the jury, inter alia, that, if the hog which frightened the horse was owned by the defendant, or was in his custody and under his control, and the defendant permitted him to be at large in the highway without a keeper, and the horse was frightened by the hog, although the looks of the hog alone occasioned the fright and the injury was occasioned thereby, the defendant would be liable, though he did not know that the hog was in the highway at the time of the accident; that it was immaterial whether or not the defendant knew that the hog was then, or had previously been at large ; and that it was his duty to see at his peril that he was not at large without a keeper. The verdict was for the plaintiff and the defendant alleged exceptions. E. S., c. 23, § 2; Keith v. Easton, 2 Allen, 556; Sutherland v. Jackson, 32 Maine, 80 ; E. S., c. 235, § 4; Davis v. Bangor, 42 Maine, 522; Cook v. Charlestown, 13 Allen, 190, note; Kingsbury v. Dedham, 13 Allen, 186.