Russell v. Cone, 46 Vt. 600

Russell v. Cone

46 Vt. 600 | Vt. | 1874

*604The opinion of the court was delivered by

Peck, J.

The action is to recover the penalty imposed by § 29 of ch. 100, Gen. Sts., which provides that, “ any person who shall suffer any neat cattle, horses, sheep, or hogs, to run at large in the public highway, except on his own premises, shall, for every such offence wilfully committed, forfeit and pay a fine of not less than one dollar, nor more than five dollars, to be recovered in an action founded on this statute,” half to be paid to the town where the animals are found running at large, and half to the prosecutor. The question reserved is, whether the court, in view of the evidence in the case, charged the jury properly as to what constituted a running at large of the defendant’s horse in the highway, within the meaning of the statute, and ruled correctly in admitting the evidence on the part of the defendant on that part of the the case. If there was no error in the charge excepted to, the evidence was admissible, as it was that evidence that raised the point excepted to in the charge. The instruction of the court to the jury, that if the hoi’se, after the defendant left it to go back home, was out of control of him and his son, and running about in the highway, at liberty to follow its own instincts and inclinations, and to go wherever it would, it was running at large within the meaning of the statute, is, as a general proposition, correct, and as favorable to the plaintiff as he was entitled to, unless in view of the evidence, he had a right to ask some more specific instruction. The plaintiff’s request to charge that “such leaving of the horse by the defendant to find the way and go back home alone in the highway, was suffering the horse to run at large in the highway contrary to the provisions of the statute,” evidently had reference to the facts the defendant’s evidence tended to prove; but whether it had exclusive reference to that or not, the plaintiff was not entitled to such charge, as there was evidence tending to show that the horse was not running at large. Such was the tendency of the evidence on the part of the defence. Running at large, is used in the statute in the sense of strolling without restraint or confinement; as wandering, roving, or rambling at will, unrestrained. Perhaps no precise abstract rule under the statute can be laid down, applicable to every case, as *605to tbe nature, character, and amount of restraint 'necessary to be exercised over a domestic animal, when suffered, as in this case, to be on the highway incident to its use. But the restraint need not be entirely physical; it may depend much upon the training, habits, and instincts of the animal in the particular case ; and the sufficiency of the restraint is to be determined more from its effect upon, and controlling and restraining influence over, the animal, than from the nature or kind. Suppose a span of horses be so accustomed to be kept and driven together, that while the owner is riding one, the other will voluntarily follow as closely almost as if led by a halter; the owner while taking them along the highway in this manner, could not be said to suffer the horse so voluntarily following its mate, to run at large in violation of the statute. The same may be said of a young sucking colt upon the highway, with no restraint other than instinct to follow its dam, which is being driven in a carriage on the highway. It was formerly a practice, to some extent, while the statute allowed it, for persons to suffer their cattle to run at large in the highway, for the purpose of grazing; and probably one of the leading objects of the statute in question, was, to put an end to that practice. The statute, however, in its construction, is not to be limited to animals running at largo in the highway for the particular purpose of grazing; but the manner in which animals were formerly accustomed to run at large under that practice, may not be an inapt illustration of the general idea intended to" be conveyed by the words in the statute, “ to run at large in the public highioay.” Whether it was prudent for the defendant to risk his horse thus to return home ; whether he would have been liable in case of accidental injury to others by means of the horse ; whether there was not danger that the horse would break loose from his fastening, and instead of going directly home, stray away and run at large,— are questions not decisive of the .question involved ; the question is, did the horse run at large in the public highway. The horse, under the supervision, care, and restraint, going directly home, as the evidence on the part of the defendant tended to show, and as the jury under the charge must have found, was not suffered to run at large within the meaning of the statute imposing the pen*606alty sought to be recovered. We find no error in the admission of the evidence, nor in the refusal to charge as the plaintiff requested, nor in the charge to which exception was taken ; and the judgment is affirmed.