37 Neb. 368 | Neb. | 1893
The defendant in error brought this action against the plaintiff in error to recover damages for injury to crops growing on land of the defendant in error, committed by cattle alleged in the petition to be those of plaintiff in error, and cattle of which he had the possession. There was a verdict and judgment in favor of the defendant in error, the plaintiff below. The errors assigned relate to the giving of certain instructions by the court and to the refusal
It appears from the evidence that a portion, if not all, of the cattle which committed the trespass complained of were not owned by the plaintiff in error, but were permitted to be pastured upon his land without compensation to him. Under this state of facts the plaintiff in error contends that the rule of liability as between bailor and bailee applies; and that the bailment of the cattle to the plaintiff in error being gratuitous, he would not in any event be liable except for gross negligence on his own part. In urging this point the plaintiff in error confuses the relations existing between bailor and bailee with those.existing between the bailee and third persons, and the doctrine referred to has no application to this case. It is also urged that the defendant in error, by surrendering possession of the cattle, and so waiving the. lien created by section 2 of the herd law, lost his remedy. This is not true, because by section 11 of the herd law it is provided that nothing in that law contained shall be so construed as to prevent the person injured from maintaining an action for damages. (Keith v. Tilford, 12 Neb., 271.)
The most serious question in the case is, whether the word “ owner” in the statute is to be construed by restricting the term to the general owner, or by extending it to persons in possession under some special title and having the custody of the stock. It was held in Delaney v. Errickson, 10 Neb.,
Affirmed.