105 Mass. 71 | Mass. | 1870
The declaration charges the defendant with negligence in turning his mule, and a horse which he was keeping for hire, into a pasture insufficiently fenced. The instructions given at the trial, as to what would be negligence in this regard, were full and accurate. The defendant cannot avoid the liability by showing that the obligation to maintain that part of the fence through which the animals escaped was upon a third party, who owned the adjoining land over which the animals passed on their way to the plaintiff’s pasture. The rights and obligations existing between adjoining owners in respect to fencing, whether regulated by statute, or by agreement, do not affect the right to recover in this case. At common law, the tenant must keep his cattle upon his own land at his peril. The defendant, as against the plaintiff, is subject to this common law duty, the parties are not adjoining owners, and their obligations are not affected by statute in this respect. It was negligence to turn the animals into a lot insecurely fenced, for which the defendant is responsible if any injury ensued, without regard to the obligations existing between the defendant and the tenant of the next lot. It may be that the defendant would not be liable in trespass for their escape into that lot, if the tenant of it was in fault, for no one can recover for an injury to which his own negligence con
The other instructions asked were also properly refused. The owner of an animal, or the person who in his place and by contract with him has the exclusive custody and control of it, is liable for injuries Which he negligently suffers it to commit. The liability stands wholly upon the ground of actual or presumed negligence. If the injury is committed while trespassing" upon the lands of others, the owner is chargeable, and is responsible for the damage which directly results therefrom as the natural and probable consequence. In other cases he may be liable, although there is no trespass, and the animal is rightfully in the place where the mischief is done; as where the injury comes from the vicious disposition or mischievous habits of the animal, of which the owner had previous actual notice; or where, without actual notice, the disposition and habits are so universal among the species that notice is presumed, as in the case of wild and savage beasts. The owner or keeper of such animals, with actual or implied notice of their character, is bound at his peril to keep them, at all times and in all places, properly secured; and is responsible to any one who without fault on his own part is injured by them.
The rulings which were asked on this point proceed upon the ground that the defendant could not be held hable, and the action could not be maintained at all, without proof of knowledge on his part that these animals were vicious and accustomed to do mischief. But, on the part of the defendant, there was negligence enough to support the action, in placing the animals where they would be likely to escape and become trespassers upon the plaintiff; and upon the question of the right to maintain the action the defendant’s knowledge or want of knowledge of their character was immaterial. W e are not required to consider what effect, if any, it would have upon the amount of the damages for which he would be liable.
As to the defendant’s liability for the damage done by the horse which he was keeping for hire, the rule laid down at the trial was certainly sufficiently favorable to him. Barnum v. Vandusen, 16 Conn. 200. Exceptions overruled.