Wilder v. Stanley

ROSS, Ch. J.

The defendant contends that the referees have not found that the colt injured escaped over the defective portion of the division fence, which it was the duty of the defendant to maintain and keep in repair. This contention is not sustained by the report. They first find that at the time of the injury complained, of the defendant’s por *148 tion of the fence was insufficient at certain points described; then that, on September 20, 1888, the plaintiff’s colts escaped from his pasture into the defendant’s pasture, over or through the gap or break in the defendant’s portion of the fence; and again, “If * * * the unlawful and defective fence over or through which we find the plaintiff’s colt passed on the 20th day of September, 1888, or a short time prior thereto,” etc. The'referees nowhere modify or change these findings, that the colt escaped over the defective portion of the defendant’s fence wherever it did escape from the plaintiff’s pasture, on that occasion. Subsequently in their report the referees find that no evidence showed how long before September 20,1888, the colt escaped from the plaintiff’s pasture, and that they cannot find the exact time prior when it did escape. Hence, the plaintiff’s colt, which was killed on September 20th, 1888, was away from the plaintiff’s pasture on that occasion through the negligence of the defendant, or his failure to discharge his duty to the plaintiff in maintaining his portion of the division fence in the manner required by law; and, as said by Smith, J., in Lee v. Riley, 18 C. B. N. S. (114 E. C. L. 722), cited with approval by this court in Tupper v. Clark, 43 Vt. 200 , adapted to the facts of this case, it was through the defendant’s negligence that the colt and barbed wire, causing its death, came together. The judgment of the county court was therefore correct, unless the facts found by the referees show that some other independent cause, disconnected with the negligence of the defendant, occasioned the death of the colt.

II. The defendant contends that the facts found in regard to the acts of Hiram Trac}^ show such an independent, disconnected cause. There are several sufficient answers to this contention. There was no legitimate evidence before the referees to show that Tracy started up or drove the colts. Tracy was not a party, and his declarations to the effect that he started up or undertook to drive the colts on the occasion, *149 if established, were not evidence which the referees could lawfully use to establish the fact. He denied that he started up or drove the colts. All his declarations shown were in regard to what he was intending, or what he had done. They were not of the res gestee, as they did not accompany and explain, or characterize his act of starting up or driving the colts. There was no other evidence tending to establish the fact that he started up or drove the colts on the occasion of the injury. If he did, it is not found that his act was negligently done. The colts had escaped through the negligence of the defendant. The plaintiff had the right to pursue and return them in a proper manner, or to employ Tracy to do so. He might not be able to catch and lead them back. He might be obliged to drive them in a prudent manner. If Tracy had been employed by the plaintiff — as he was not— to defeat the right of recovery, it must have been found, as it is not, that Tracy started or drove the colts negligently. The escape being through the negligence of the defendant, that negligence accompanied the colts while roaming, by reason of it, away from the plaintiff’s pasture. Inasmuch as Tracy was not the servant of the plaintiff, if he voluntarily negligently started up or drove the colt at the time it was injured, Tracy’s negligence would be concurrent with that of the defendant in causing the death of the colt. In such a case both or either of the wrong doers are liable for the injury and damage caused by their concurrent negligence. Hence, this contention of the defendant is not maintainable.

Judgment affirmed.