59 N.H. 564 | N.H. | 1880
The plaintiff's mare was grazing upon his land. It is not material that it was on land in which the public had an easement, since her grazing did not interfere with the public rights, and, subject to these rights, the plaintiff was entitled to the use of the land within the limits of the highway as fully as to the use of any land he owned. Makepeace v. Worden,
Whether the change made by the enactment of the Gen. Sts., c. 148, s. 1, whereby railroads are, in terms, required to fence on both sides of their road, except at their intersection with highways, has so changed their liabilities that now they are answerable for all damage occasioned by their neglect to perform this duty, whether such damage is to the property of adjoining land-owners or not, we need not now consider, since upon the facts found we hold that the plaintiff's mare was rightfully in the highway. It may, however, be suggested that the change to which we have adverted was regarded by the commissioners who revised the General Statutes as material, as is shown by the marginal note of their report (c. 149, s. 1).
The instructions to the jury made the liability of the defendants depend upon the want of ordinary care by the plaintiff in turning his mare into the highway. This was error. As we have seen, the plaintiff's rights in the highway were the same as in any other land owned by him, except so far as they were modified by the public rights, and in such cases neither his rights nor the defendants' liabilities are affected by the plaintiff's want of ordinary care. If the plaintiff had the right to turn his mare into the highway to feed, due care was not required of him to prevent her escape to the defendants' track. The fact that they had neglected to fence their *567 roadway, and the plaintiff's knowledge of that fact, did not deprive him of the rightful use of his land. The defendants' neglect did not impose upon the plaintiff any obligation, or put him under any disability, with respect to the reasonable enjoyment of his property. The defendants electing to use their road without complying with the law which required them to fence it, they assumed the risk of the accident which happened in this case as a consequence of their neglect. It is not a question here whether the plaintiff had an active agency in causing the injury of which he complains. If it were, it might be incumbent on him to show that he was in the exercise of ordinary care. Here the question is, whether the plaintiff is to be deprived of a remedy for an injury caused to him while in the ordinary use of his property. By the common law the plaintiff was bound to keep his mare upon his own land; but here the statute had imposed that duty upon the defendants, and the rights of the parties are to be determined by the statute. If the plaintiff is held to the same care as the common law requires of him, the statute is inoperative.
In Ohio the law is, that where the plaintiff, in the ordinary exercise of his own rights, allows his property to be in an exposed or hazardous position, and it becomes injured by the negligence of the defendant, he is entitled to damages. By his allowing his property to be exposed to damage, he took upon himself the risk of loss or injury by mere accident, but he did not thereby voluntarily incur the risk of injury by the negligence of another. Kerwhaker v. C. C. C. R. R.,
In Michigan it is held that the negligence of the plaintiff will not bar his recovery. F. P. M. R. Co. v. Lull,
If the liability of the defendants depends on the exercise of ordinary care by the plaintiff, the defendants need never fence their road, so far as respects adjoining owners. The plaintiff could not enjoy the full benefit of his land. He could only make such use of it as would not require it to be enclosed. His use of it would depend on the pleasure of the defendants. It is not contributory negligence, within the meaning of the rule, for the owner to pasture his stock upon his own land because the railroad fails to discharge its statutory duty and fence its road. Shepard v. N.Y. E. R. R.,
Whether the defendants would be liable if the plaintiff wilfully drove his mare upon the railroad, or drove her and left her in an exposed situation, we need not consider, since the facts stated do not raise such a question. There can, however, be no doubt of the plaintiff's right to use his land as he pleases, doing no unnecessary injury to others. There was no negligence in his pasturing his mare upon his own premises, although he was aware of the defective condition of the fence, which it was the duty of the defendants to maintain. Corwin v. N. Y. E. R. R.,
In Wilder v. Me. Central R R.,
The true principle applicable to this class of cases is stated in Cook v. Champlain Transportation Co., 1 Denio 91, 101. It is this: "While a person confines himself to a lawful employment on his own premises, his position, however injudicious and imprudent it may be, is not therefore wrongful, and his want of due care or judgment in its selection can never amount to negligence so as thereby to deprive him of redress for wrongs done to him by others." This doctrine was reaffirmed in Fero v. Buffalo State Line R. R.,
Applying this principle here, the plaintiff's use of the highway being rightful, he is entitled to recover for the damages caused to him by the defendants' negligence, regardless of the question whether his knowledge of the defendants' fault made his use of his own land negligent. The first request for instructions embodied this view of the law, and should have been granted.
Verdict set aside.
FOSTER and ALLEN, JJ., did not sit: the others concurred.