38 Iowa 560 | Iowa | 1874
— The defendant asked the court to instruct the jury as follows:
“ If you find from the evidence that the defendant’s fence, with the exception of one or two small gaps, was sufficient to
“2. If you find that the plaintiff could, by the use of ordinary care, have prevented the horses and cattle from eating and destroying his hay and corn, he cannot recover for such hay and corn thus destroyed, which by ordinary diligence he might have prevented. The plaintiff, after he knew the horses and cattle of others were destroying his hay and corn, should have used reasonable caution'to have prevented further injury, such as fencing his stacks, and fencing his corn beyond the reach of such stock, provided he could reasonably have done so.”
“3. A man has no right to carelessly look on at the destruction of his property. It is his duty to use reasonable care to prevent such destruction; and if .he fails to use ordinary care, he cannot recover for the injury which by ordinary care he might have prevented.”
The bill of exceptions recites that there was evidence tending to show that there were one or two small gaps in the partition fence, which it would have required but a short time
II. The defendant also assigns error upon the giving of the following instruction:
“ If, therefore, you are satisfied by a preponderance of the evidence that defendant’s stock did trespass on plaintiffs’s premises as claimed, you will allow plaintiff the actual damages which in your judgment he sustained by reason thereof, without inquiring into the question whether plaintiff’s premises were or not surrounded by a lawful fence.”
Eeversed.