14 Ind. 317 | Ind. | 1860
J.—Suit by the appellee against the to recover damages for injury done by trespassing animals. Verdict and judgment for the plaintiff, a new trial being denied. The material facts are as follows: A lot of cattle belonging jointly to the defendants and one Jefferson D. Brady were being pastured by their owners in a field belonging to one Stockton. They broke through the partition fence between the field of Stockton and the premises of Robert Foresman, and entered the latter, thence through the partition fence between Foresman!s premises and the plaintiff’s wheat-field, and thence into his corn-field, eating and otherwise destroying the plaintiff’s corn and wheat.
The defendants also asked the following instruction, which was refused, viz.:
“If the jury believe from the evidence that the partition fence between the lands of Robert Foresman and the field where these cattle were pastured was owned, one-half by Foresman, and the other by the owner of the field where the cattle were pastured, and the cattle broke through the part owned by Foresman, and that this fence was not such a fence as a careful farmer ought to maintain as a partition fence, and that the fence between the land of Foresman and the field of Mr. Ball, in which the injury was committed, was also an insufficient fence, and not such an one as a careful farmer ought to keep, then you should find for the defendants.”
The Court read to the jury, as containing the principles of law binding on the Court and jury, a part of the opinion of this Court in the case of Myers v. Dodd, 9 Ind. R. 290.
The Counsel for the appellants do not claim that the case thus read from was wrongly decided, but that the facts in that case were so essentially different from those in the case at bar, that the decision was not applicable here, and that the Court should have pointed out the difference to the jury.
We do not think that any error was committed in refusing the charge asked, or in giving the jury, as a correct exposition of the law, the extract from the opinion in the case mentioned.
The case of Myers v. Dodd settles two questions which are decisive of the present. It involved a trespass, committed by the cattle of an adjoining proprietor passing from the defendant’s land on to that of the plaintiff, a part of
The remark of the Court in Myers v. Dodd (which was read to the jury, and of which counsel complain), that “both parties were equally bound to maintain the partition fence,” and that “either party might have repaired it, and enforced contribution from the other,” may not have been applicable to the case here, but it was entirely harmless, as the general propositions decided were applicable and conclusive upon the facts involved in this case, without regard to the character of the fences as to sufficiency, over which the cattle broke.
We cannot disturb the verdict upon the evidence, which seems to be sufficient to sustain it.
The judgment is affirmed with 5 per cent, damages and coéts.