Lucia v. Meech, 68 Vt. 175

Lucia v. Meech

68 Vt. 175 | Vt. | 1896

ROSS, C. J.

The defendant was the bailee of the plaintiff’s horse to pasture it during the summer of 1894. In her discharge of the bailment, it was her duty — unless some contract existed varying that duty — to maintain or cause to be maintained, a legal fence between the pasture and the meadow of Root. The law on this subject is considered in Sargent v. Slack, 47 Vt. 674. The jury have found that no contract existed between the parties on this subject.

1. The point in the fence where the horse escaped was not in controversy; rather the plaintiff claimed that the fence between the pasture and Root’s meadow was defective at a particular point, and that by reason of that defect the horse escaped into the meadow. Whether she had *179maintained the fence at this point, in the condition which the law required, was the material inquiry in the case. Evidence to show that the fence surrounding the pasture at other points was maintained so that it met the requirements of the law, or otherwise, was immaterial to a determination of the issue made by the plaintiff. That other persons, of prominence, regarded the defendant a careful and prudent agister of horses, and entrusted valuable horses to her care; that the fence around her pasture compared favorably with the fences surrounding the pastures of other persons in that section; and that no other animals to the knowledge of the witness escaped from the pasture until the plaintiff’s horse escaped, had no relevancy to the determination of this issue, and were property rejected. All the facts, proposed to be established by such testimony, did not tend to show that the defendant might not have been negligent in regard to maintaining a legal fence at the point complained of. Nor, on the issue presented by the plaintiff, was it material to show how the defendant kept other horses for people, or that their horses ran with other horses. The plaintiff made no complaint in this respect. Nor was it material for the defendant to show that such other persons took the risk of injury to their horses. That she made such a trade with others did not tend to show that she made it with the plaintiff. As bearing upon the conflict of her testimony with that of the plaintiff, on this point, she was permitted to show that it was her custom to insert into her contracts a provision that the owner of the horse took the risk of its injury. This did not permit her to show particular instances in which she carried the custom into effect. There was no error in the rejection of offered testimony.

2. The defendant does not not now insist that the county court erred in regard to her first request to charge. Her second and third requests are defective and inapplicable; defective because they apply generally to the fence sur*180rounding the pasture, when they should be confined to the portions complained of; inapplicable because there was no testimony tending to show that the plaintiff had any knowledge of the defect in the fence complained of, before the escape of the horse. There was no error in the failure to comply with the fourth request. No foundation for its application was laid by the evidence. The case does not disclose that any evidence was introduced nor claimed, that any cause for the injury to the plaintiff’s horse intervened between its escape from the pasture through the fault of the defendant, and its being run over and killed by the cars.

3. The declaration was properly held good against a motion in arrest of judgment. It alleges that the defendant carelessly and negligently omitted to surround the pasture with a proper fence, and carelessly and negligently permitted the fence to become and remain out of repair, “so that the horse” escaped and was killed. If in place of “so that” he had alleged “whereby” or “by reason whereof”, the connection between the alleged negligence and injury to, and death of, the horse, would have been properly set forth. The language used, in legal sense, is equivalent to, “because of which negligence” or “by reason whereof.” The declaration is clearly sufficient to stand the encounter of a motion in arrest of judgment.

Judgment affirmed.