Hassa v. Junger

| Wis. | Oct 11, 1862

By the Court,

PAINE, J.

The judgment in this case must be affirmed. The suit was brought, as appears by the complaint, solely for an injury to the plaintiff’s crop, which was alleged to have been occasioned by the defendant’s taking down the fence. There was no allegation and no proof that the fence removed belonged to the plaintiff, or that the defendant trespassed upon the land in possession of the plaintiff in removing it. The only injury complained of is consequential — that arising to the crop by cattle getting in where the fence was taken down. The evidence returned by the justice showed that the crop was sowed by the plaintiff a cons^era^e time a:^er fencc was removed. That being so, it was the plaintiffs own folly to sow his crop, leaving the fence in g^ch a condition that the cattle could enter and destroy it. Where one has been guilty of some unlawful act or neglect which may cause injury to others, all others are still bound to use ordinary care and prudence to avoid the injury; and if they do not, they cannot recover. That was the case here. The defendant used no care whatever. He might as well have driven voluntarily against an obstruction which another had placed in the road, and which he could easily avoid, and then sue for the damages.

The justice himself disallowed all damages for the crop, but allowed damages for the grass growing in the corners of the fences, which was eaten or trodden down. It is enough to say that no such damage was sued for, and that the judgment was properly reversed by the circuit court.

We do not think the judge was bound to file a written finding of the facts and conclusions of law. -The provision of the statute requiring that, relates to cases tried originally before the circuit or county judges. But in appeals like this from a justice’s court, where the judgment is under fifteen dollars, they sit in review upon the record returned by the justice, which includes the evidence. And if the case is brought here, the question is, whether, upon that record, the judgment of the court below was right or wrong.

Judgment affirmed, with costs.