126 Iowa 488 | Iowa | 1905
Tbe authorities are in conflict as to whether an oral agreement dividing a line fence is within tbe statute of
When wrong is done, and consequential damage sustained, the law inquires who committed the first wrongful act and thereby occasioned the mischief? In this, instance the defendant, who was the owner of a close called “ Bridge Green,” was bound securely to fence it so that the cattle of the plaintiff, who was owner of an adjoining close, might not be able to stray into it. This the defendant neglected to do, and in consequence the cattle of plaintiff strayed in Bridge Green, and from thence into another close of the defendant, called Cornfield. It is argued that the cattle getting into the cornfield was not a necessary consequence of defendant’s neglect to keep up the fence of Bridge Green. Certainly it was not a necessary consequence; it was not a causa, causans; but it was a sina quo non. If a pit be dug in a highway or any place where persons have a right to pass, it is not a necessary consequence that any one should fall into it, although it may be that, either in the niq-ht or day time, someone would do so. In such a ease it is sufficient if the injury is the accidental result of the wrongful act.
The plaintiff’s negligence must be regarded as that occasioning the damage sustained. It is a fair presumption which the law will make that if the plaintiff had performed her duty properly, in repairing her part of the division fence, the sheep would not have escaped from the pasture of the defendant, and the damage complained of would not have been sustained. And it is clear that while, under the circumstances of the case, the plaintiff is, in law, to be regarded as having contributed to the result of which complaint is made, she can have no action for the damage sustained, against the defendant, who has not occasioned it either by positive wrongful acts or by any negligence whatsoever.
In the instant case, however, there was no partition of the line fence, and the omission to keep it in repair was not due to any neglect on- the part of the plaintiff of which defendant might complain; and in view of the holding of this court in Wagner v. Bissell, 3 Iowa, 396, and like cases, the defendant was not bound to restrain his stock. They were running at large. This did not shield tire owner, however, from liability, if they broke the close of plaintiff surrounded by a lawful fence. Frazier v. Nortinus, 34 Iowa, 82; Herold v. Meyers, 20 Iowa, 318. That they ¡altered such close and committed depredation is not disputed. The only issues for the jury were Hie sufficiency of the fence inclosing the yard, and the amount of damages, and these were fairly submitted. That the line fence furnished no obstruction to cattle was undisputed, and for- this reason the jury must have based their decision upon a finding of the sufficiency of the yard fence.
That concerning defendant’s forceable taking of bis cattle from plaintiff’s inclosure was so connected witb tbe restraint and trespass of tbe stock as to be admissible as a part of tbe transactions.
That part of tbe motion for new trial based on alleged surprise and newly discovered evidence was properly denied. It is possible tbat defendant did not personally know tbat tbe petition claimed damages caused by tbe cattle breaking through tbe inclosure of tbe yard, but of this counsel must bave been aware. At any rate, they were soon apprised by the evidence introduced, and if so taken by surprise as'not to be able to safely proceed witb tbe trial, a continuance should have been asked. For all that appears, the additional evidence, by tbe exercise of ordinary diligence, could bave been procured.
Finding no prejudicial error, tbe judgment is affirmed.