McIlvaine v. Lantz

100 Pa. 586 | Pa. | 1882

Mr. Justice Mercur

delivered the opinion of the court October 4th 1882.

This is a case of negligence. The injury was caused by the negligence of the plaintiffs in error, in permitting a stallion of theirs to escape from the yard in which he had been kept, and to roam on the public highway. The stallion was two years old, and was kept in a barnyard with another colt. The fence inclosing the yard was claimed to be as good as those which generally inclose the barnyards of farmers.

The jury have found that stallions of the age of this one, as a class, have vicious propensities, and are commonly known to have them ; that they are liable and likely to do damage ; that the plaintiffs in error were negligent and careless in keeping their stallion, and did not have sufficient and proper fences around the inclosure in which they had the stallion confined, and from which he escaped, to keep him properly confined ; and that they did not use precautions necessary and proper to keep such animal from escaping, straying, and roving loose on the public highway, and endangering the traveling public; and that his being at large on the puSlic road Avas the proximate cause of the injury complained of. They further found that the defendant in error was not guilty of any concurrent or contributory negligence on her part. All these facts Avere found on evidence sufficient to justify the finding. This leaves little for us to consider. The main complaint arises under the third specification. The court was requested to charge : “if the jury believe that at the time the defendants’ horse broke out of their barnyard, it was inclosed by such a fence as is common among fanners, and usually considered safe to confine the farm stock, including such a horse as that of the defendants, they Avere not guilty of negligence, and the plaintiff; cannot recover.” The court refused to so instruct the jury, but left it to them to find, under the evidence, whether the fence was sufficient and safe for keeping in such animals as the stallion ; if it was, and the stallion did not get out through default of the defendants, the plaintiffs could not recover. In this Ave see no error. The fact that the fence may have been such as is common among farmers, and usually considered safe, does not take from the jury the right to find, under all the evidence, whether the fence was sufficient. The evidence aauis conflicting as to the height of the fence, and not clear as to its condition otherwise. The fact Avas undisputed that the colts jumped over it. The point wholly overlooked the general rule, which the court had declared in the general charge, that negligence “is the want of such care as men of ordinary prudence Avonld use under similar circumstances.” The request was not to charge that the fence was sufficient, if such as men of ordinary prudence would deem adequate to secure the detention of such a horse. All questions of reasonable care and ordinary prudence were Avholly ignored.

The injury was committed on the 5th of June. An uncontradicted witness testified that he saw the stallion at large on the public highway, in the latter part of April previous, and a boy drive it into the barnyard. The well-known habits and. natural inclination of stallions, require a degree of precaution which the owners did not exercise. It is no answer that other farmers may have been equally negligent. Two men, who were in the employ of the plaintiffs in error, saw the stallion break from the yard, yet it was suffered to remain in the public highway some five hours before the injury was sustained.

It is not necessary to discuss the other specifications in detail. ¥e discover no merit in them.

Judgment affirmed.