3 Stew. 482 | Ala. | 1831
In this court, the plaintiff in error contends, that the setting of the gun within his enclosure, for the purpose expressed in the bill of exceptions, was a lawful act, and did not amount to culpable negligence on his part; and that, if he was blamable in this, yet the act of the negro, in bringing and tying the horse within the defendant’s enclosure, if not unlawful, was a negligence, equally culpable; and that, the injury being the result of the concurrent negligence of both parties, the defendant cannot be made liable.
If the first branch of this proposition be true — if the defendant did no more than what he might lawfully do — then, it is evident, that he cannot be liable for the plaintiff’s loss.— But I hold, that if not unlawful, it was, at least, a negligent act of the defendant, to set his gun within his enclosure,' around which the fence was only two or three feet high, and into which the cattle, and other stock of his neighbors, running at large, in the woods, might lawfully enter at pleasure. If his fence had been lawful, he would then be blameless.
The second branch of the proposition involves the inquiry, whether the plaintiff was or was not, either by himself or his servants, guilty of negligence, and without which, in all probability, the injury would not have happened. In all rwohn-
To this effect, is the law, as stated in the case of Butterfield v. Forrester;
To the same effect is the law cited,
The principle settled in these cases, is the same involved the one under consideration. The injury may be imputed as much to the negligence 'of the plaintiff, as of the defendant; and, if so, the defendant was not liable, and so should the law have been stated to the jury. The court are of opinion, that the judgment should be reversed, and the cause remanded.
Reversed and remanded.
11 East, 60.
2Wheat's Sel. 852.