Totten v. Cole

33 Mo. 138 | Mo. | 1862

Bates, Judge,

delivered the opinion of the court.

The petition in this case is as follows :

“ The plaintiff states that on or about the 30th day of June, 1857, defendant failed to keep his fences and enclosure around his oats of sufficient height, as required by law, in consequence of which a mare of plaintiff, and of the value of one hundred and twenty-five dollars, went into the said enclosures of defendant, the defendant then and there killed said mare wrongfully and without any excuse. Plaintiff charges that the enclosures of the defendant were not constructed and built sufficient and according to law, and that in consequence of the insufficiency of the fences around his enclosures, about the thirtieth day of June, 1857, at Jefferson county, Missouri, the property of plaintiff, to-wit, a certain gray mare, of the value of one hundred and twenty-five dollars, was killed and rendered of no value to plaintiff, by means and in consequence of which the plaintiff is damaged one hundred and twenty-five dollars, for which he asks judgment.”

The defendant’s answer denies all the material allegations of the petition. The evidence tended to show that the defendant’s fence was not such as the statute regulating enclosures requires; that a mare of the plaintiff was found in the defendant’s field, and was chased out by a servant of defendant, and was killed by running against a snag or stump after she had passed out of the field.

The court instructed the jury as follows :

1. If the jury find that the field of the defendant was not in all places of the height of five feet, staked, and ridered or locked at the corners, and that the plaintiff’s mare having jumped over it, the defendant’s servants or employees, whilst engaged in turning the mare out, they set dogs on the mare, and that in consequence of any incautious chasing the mare was killed, they will find for the plaintiff the value of the mare, and any further damages he may have sustained thereby.

2. But if the jury find that the mare was killed by an accident in no way caused by the dogging of her by the defendant’s dogs, they will find for the defendant.

3. It makes no difference in the question submitted to the jury whether the mare was killed in the field or in the lane, if the accident was caused by the chasing by dogs.

4. That although they may find that the fence around the defendant’s field was not of the height required by law, yet if the horse of the plaintiff strayed into it, the defendant had a right to turn it out, using the usual and ordinary caution to avoid doing any injury to the animal; and the amount of caution required by the law in such cases is always proportioned to the danger resulting from the use of the means employed.

5. That the setting of dogs on horses, to run them out of the field of another, is not necessarily a wrongful act, if done under circumstances indicating the observance of the care and caution to prevent injury to such animal proportioned to the danger resulting from the use of the means employed.

6. To entitle the plaintiff to their verdict, the jury must find — 1st, that the killing of his horse was the result of the chasing by dogs; and, 2d, that the chasing with the dogs was attended with circumstances indicating the want of the care and caution necessary to avoid doing injury to the animal proportioned to the danger resulting from the acts done.

Although these instructions are somewhat vague in describing the amount of care to be used by the defendant, yet, upon the whole, they make a fair statement of the law applicable to the case. The defendant asked six instructions, which were refused, but the substance of them is included in the instructions given. Verdict for forty dollars having been given for the plaintiff, and judgment entered upon it, we will not interfere with it.

Judgment affirmed.

Judges Bay and Dryden concur.