14 Neb. 232 | Neb. | 1883
This-is an action by the plaintiff against the defendant, to recover for the value of a horse killed by falling down the side of a cut, alleged to have been made by grading the defendant’s road. A demurrer to the petition was sustained in the court below and the action dismissed. The only error assigned in this court is, that the court erred in
"We are not aware of any statute in this state requiring a railroad company to fence its road within the limit of a city or village. Indeed the statute (Comp. St., 381) ex
The action therefore must be governed by the principles of the common law.
If an excavation was made so near a public road that persons or animals passing along the road might accidentally fall into the same, it would be the duty of the party making the excavation to erect suitable guards to prevent such accidents, and upon failure to do so, the party injured could recover whatever damages he may have sustained from the neglect. Cooley on Torts, 660. Beck v. Carter, 68 N. Y., 283. B. & O. R. R. Co. v. Boteler, 38 Md., 568. Davis v. Hill, 41 N. H., 329. Vale v. Bliss, 50 Barb., 358. Hardcastle v. Railroad Co., 4 H. N., 67. Barnes v. Ward, 2. C. & K., 661. But where a party makes an excavation on his own land away from a public thoroughfare, we are not aware of any case in which it is held that a party making the excavation must erect guards around the same for the protection of persons or stock trespassing on such land. There is no obligation in such case.
It is claimed that the case of Young v. Harvey, 16 Indiana, 34, supports the plaintiff’s claim. In that case, one Harvey commenced digging a well near the line of a street upon an uninclosed lot owned by him, and dug the same to the depth of six feet, and then abandoned it in an unfinished condition, and it was uncovered or only partially covered. Horses, cows, and hogs were permitted by law to run at large in the street. A horse belonging to the plaintiff, fell into the unfinished well and was killed. The court held that the plaintiff was entitled to recover the value of the horse. The court below had held that the action could not be maintained. The court say: “Whether it can be or not depends upon the degree of probability there was that such an accident might happen from thus leaving
We think that is a correct statement of the law as applied to the facts of that case. But the case is not applicable to the facts stated in the petition.
In Dunham v. Musselman, 2 Black., 96, the action was for the loss of a horse running at large, which was killed by a falling tree which had been set on fire by the defendant. It was held that unless it was shown that there was some degree of probability that the burning down of the tree would have done the plaintiff an injury, there was no liability.
In the case under consideration, the horse was running at large in the night time, in violation of the statute, and so far as appears was trespassing upon the lands of another. The place at which the accident occurred is not alleged to have been on or near any thoroughfare, nor does it appear that the defendant was under any obligation to erect barriers at the place designated to prevent an accident to the plaintiff’s stock. The petition therefore fails to state a cause of action, and the judgment must be affirmed.
Judgment affirmed.