Holden v. Shattuck

Highways, Restraint of Domestic Animals. Negligence. The owner of lands through which a highway is established, retains the fee of the soil embraced within its limits, with the full right to its enjoyment in any manner not inconsistent with the enjoyment of the easement by the public for the purposes of a highway; and this right is exclusive against all other persons. Under the recent statutes in this state, the law is, as it ever has been in England, that the owner is under no obligation to fence his land along the highway; the obligation in this respect being limited to his duty to restrain his cattle from trespassing upon his"noighbors. Therefore, the mere fact of a domestic animal being in the highway, unattended by its owner or servant, cannot be regarded as unlawful, or a breach of duty, rendering the owner liable for injurious consequences that may accidentally flow therefrom. In order to constitute the presence of such animal in the highway adjoining the owner’s land, wrongful on the part of the owner, it should appear that the circumstances and occasion, or that the character and habits of the animal, were known to the owner to"such an extent as to warrant the finding of the fact of carelessness on the part of such owner, in reference to the convenience and safety of the traveling public..

Case. The declaration alleged that the defendant carelessly and negligently suffered his horse to be at large in the highway, whereby the horse of the plaintiff, which was traveling along the same highway, harnessed to a wagon, was, by the misconduct of the defendant’s horse, rendered so restive, frightened, and unmanageable, that he ran out of said highway, and was greatly damaged. Plea, the general issue, and trial by jury, May term, 1860, Redeield, Ch. J., presiding. On trial, the plaintiff gave evidence tending to prove that he was traveling from Springfield to Mount Holly, with a three years old colt harnessed to a wagon, and that while passing along the highway, in the town of Weston, he saw the defendant’s horse upon the roadside, feeding upon oats across the fence; that as he came opposite to the horse of the defendant, it suddenly turned and reared and came at the plaintiff’s horse as though about to jump on to him, and made demonstrations as though to bite and kick the plaintiff’s horse, and then turned and came into tlie highway near to, and ahead of, the plaintiff’s horse and trotted ahead for some ten or twelve rods, and then commenced running; that the plaintiff’s horse endeavored to keep up, and broke into a run, but the plaintiff restrained it after running five or six rods; that sixty-five rods from where the defendant’s horse first turned upon the horse of the plaintiff, the defendant’s horse turned off the highway, on to a road leading therefrom, at right angles, and after passing about twelve rods, stopped ; that the plaintiff’s horse wanted to follow and attempted to do so, but the plaintiff succeeded in driving along the highway without difficulty, hut that the horse, after passing the cross road, was excited and inclined to go fast, and frequently turned its head and looked hack, and that on arriving at a small sluice-way in the road, two hundred and two rods from where the defendant’s horse turned off, it suddenly flung its head round, sprang forward, kicked and broke the shafts of the wagon, and ran, cutting its legs and damaging the harness and wagon. The plaintiff’s testimony also tended to show that his horse was three years old, well broken, and had no unsteady or bad tricks, and that the defendant’s horse w is in the highway with his knowledge and consent, and was high spirited and accustomed to bite and quarrel with other horses. The defendant’s evidence tended to prove that the plaintiff’s horse had before kicked when driven in a wagon, and was not well broken and steady, but was shy about passing bridges, and afraid of hoards or new timber beside the road ; that on the day in question, the defendant turned his horse into his pasture, where he saw it but a-short time before it was so found in the highway, and that the pasture was a safe place to put and keep the horse ; that the horse was peaceable and not accustomed to jump, and that the defendant did not know the horse was in the highway until just as the plaintiff came along, at which time the defendant was in a hay field some two hundred rods distant. The defendant’s evidence further tended to show that his horse, when opposite the plaintiff, made no such demonstrations as the plaintiff’s evidence tended to show, hut that it turned quietly into the road ahead of the plaintiff’s horse and trotted along in advance until it came to a little rise in the highway, when it fel¡ into a walk, and so continued, until, arriving at the top, it turned on to said cross road, and cantered about twelve rods and stopped, and did not again return to the highway ; that the plaintiff’s horse walked a portion of the way after passing the cross road, and before arriving at the sluice way, where the injury occurred, and that after passing the cross road the plaintiff had no trouble in managing his horse until it suddenly started upon the sluice way. , The defendant requested the court,-1 to charge the jury as follows: 1. That if the defendant exercised ordinary care and diligence in the keeping of his horse, and that if it was out on the day of the accident without his knowledge, the plaintiff could not recover, although the accident was occasioned by the defendant’s horse 2. That if the accident was the result partly of the misconduct of the defendant’s horse, and partly of the misconduct of the plaintiff’s horse, the plaintiff could not recover, although the defendant knowingly permitted his horse to be at large in the highway. 3. That the defendant’s^ horse passing along the highway, ahead of the plaintiff’s horse, whether trotting or running, or both, was not such misconduct as would entitle the plaintiff to recover, although the defendant knowingly permitted,his horse to be at large in the highway. 4. That if the accident was not the necessary and immediate result of the misconduct of the defendant’s horse, the plaintiff was not entitled to recover, although the defendant knowingly permitted his horse to be at large in the highway. 5. That if the accident was not the necessary result of the misconduct of the defendant’s horse, the plaintiff is not entitled to recover, although the defendant knowingly permitted his horse to be at large in the highway. 6. That if the accident was not occasioned by the misconduct of the defendant’s horse, the plaintiff is not entitled to recover, although the defendant knowingly permitted his horse to be at large in the highway. 7. That if the defendant’s horse was guilty of misconduct when the first turned from where he was eating oats beside the road, and not afterwards, and the accident happened after the plaintiff bad traveled two hundred and sixty-seven rods from that place, that then the plaintiff could not recover, although the defendant knowingly permitted his horse to be at large in the highway. 8. That if the plaintiff traveled two hundred and two rods after the defendant’s horse left the highway on which he (plaintiff) was traveling, and before the accident, that the plaintiff could not recover, although the defendant knowingly suffered his horse to be at large in the highway. 9. That if the plaintiff’s version of thetransacti on was true, the plaintiff was not entitled to recover, although the defendant knowingly suffered his horse to be at large in the highway. The eourt charged the jury incompliance with the defendant’s first request, except adding the words “ or fault,” next after the word “ knowledge ” They also charged the jury according to the defendant’s second, fourth, fifth and sixth request. In regard to the third request, the court told the jury that it was matter of fact for them to determine, whether the defendant’s horse conducted in such a manner as to render the plaintiff’s horse excited and unmanageable, to such an extent as. in spite of all the plaintiff’s efforts, he possessing and exercising reasonable and ordinary skill, care and prudence, to produce the injury to the plaintiff’s horse, harness and wagon, complained of, and that no precise rule of law could be given, as to what particular conduct of the defendant’s horse would produce such a result. The jury were told, too, that if the plaintiff’s horse, harness or wagon, were not reasonably safe to drive upon the highway, and such as prudent men would regard as ordinarily safe to be used in that way, and the accident was in any manner or degree attributable to such defects, the plaintiff could not recover. But that if the jury were satisfied the defendant’s horse was at large with his knowledge, or through his want of ordinary care in restraining him, and his meeting the plaintiff’s horse so excited it as to be the direct and immediate cause of the injury complained of, before the plaintiff, in the exercise of ordinary care and skill, could quiet or (control it, the plaintiff would be entitled to a verdict. In regard to the seventh, eighth and ninth requests of the defendant, the court told the jury that it was matter of fact for them to determine, whether the plaintiff’s horse did in fact become quiet and manageable after meeting with the defendant’s horse, and before the accident, in the manner the defendant’s testimony-tended to show ; if so they should give a verdict for the defendant, since the natural inference would then be that some other exciting cause intervened to produce the injury. The jury-were told also, that there was a natural improbability resulting from human experience that such an accident should occur from meeting another horse, after the plaintiff’s horse had gone more than half a mile ; but it was possible the excitement and terror might continue until it resulted in the accident and injury complained of, and if they so judged from all the evidence and probabitities in the case, they would so find. The defendant excepted to the refusal to charge as requested, and to the charge as given in relation to the points involved in such request. Verdict and judgment for the plaintiff. I. The defendant was bound to exercise ordinary care and diligence only in keeping his horse. II. The charge, as given, in answer to the defendant’s first request, held the defendant to a higher measure of diligence. It required him, in effect, to absolutely restrain his horse, else the words “ or fault,” are without meaning.' III. The charge, in answer to the third request, was erroneous. It makes the defendant liable, though his horse had been at the time standing still or grazing beside the highway, if the plaintiff’s horse was thereby excited and so the injury happened. This would make the defendant liable without any fault on the part of his horse, except that it was a horse. IV. It was error to instruct the jury that the defendant’s ninth request presented only a question of fact, or “ fact and construction,” if the word construction, as used here, means anything. 16 U. S. Dig. 468, §35. V. The law is, as claimed by the defendant, upon the facts stated in his several requests, and the court should have charged in donformity therewith. 1. Because no action can be sustained upon such a state of facts. 15 Vt. 404, Gogsiuell v. Baldwin. 1 Chit PI. 55. 13 Johns 339, Vernon v. Sawyer. 1 Bac. Ab. 118. 14 U. S. Dig. 9, §13. 2 Salkeld 662, Bruxendie v Sharp. 4 Camp. 198, Beck and wife v. Dyson. 5 Law and Equity 514, Hudson v. Boherts. 2. Because the defendant had a lawful right to let his horse run in the highways, at least upon his own lands. By the common law horses are commonable. 2 Bac. Ab. 261, Tit., of common appendant. There is no statute restraining them, except as to villages. Chap. 15, Comp. Stat. 122, sec. 81, authorizes towns to make by-laws restraining any animals from running at large, but there is no evidence in the case that the town of Weston ever acted upon the subject, or made any by-laws. 3. The declaration alleges that the defendant was bound to restrain his horse. This was a material allegation, and proof of it was essential to the plaintiff’s right of recovery under his declaration. The case is destitute of such proof.