| Vt. | Nov 15, 1870
The opinion of the court was delivered by
The questions in this case arise upon the report of a referee. In order to make the proper application of the facts found by the referee to the case before us, it is necessary to look into the declaration, to see what it is that the plaintiff seeks to recover for.
The first count is in trespass, in which the plaintiff alleges that the mare of the defendant kicked the plaintiff’s horse, broke his leg, and rendered him of no value; there is no allegation of attending circumstances that could make the defendant liable, and if all that is stated therein were true, the defendant would not be liable.
The second count is in case, in which the plaintiff alleges that the defendant was the owner and keeper of a vicious and dangerous mare, that he knew was accustomed to attack, kick and bite other horse kind, and that not being properly restrained by the defendant, said mare did attack the horse of the plaintiff, and cause the injury complained of. The allegations in this count are sufficient to entitle the plaintiff to recover, if sustained by the facts found by the referee ; but upon looking into the report we think the facts found are wholly insufficient to sustain this claim.
The referee finds that the mare was kind and gentle, except when in heat; that during such periods she had on several occasions kicked at other horses, and that the defendant knew of this fact; but he also finds that at the time the defendant turned her out into his field she was not in such condition, nor was she so at the time of the injury to the plaintiff’s horse. This peculiarity in the defendant’s mare, (if it can be called a peculiarity,) was not of such a character as to impose upon the defendant the duty of restraining her at all times, or of subjecting her to any unusual restraint, except during said period, and his failure to do so is not sufficient to make him liable.
The third count is in case, and in it the plaintiff alleges that he and the defendant were owners and occupiers of adjoining lands;
Under this count what must the plaintiff show to entitle himself to a judgment ? Clearly, that the defendant was bound to keep up the division fence, that he neglected to do it, and that the injury resulted from such neglect. The obligation and neglect to keep up the fence is of the gist of the action, the foundation of the plaintiff’s claim. This is not like an action of trespass quare clausum; in such case the gist of the action is the breach of the plaintiff’s close. Many of the cases cited by the plaintiff’s counsel are of this character, wherein it is held that proof of such breach makes a prima fade case for the plaintiff and throws upon the defendant the burden of justifying ; but here the plaintiff bases his claim upon the duty and neglect of the defendant.
In De Benedetti v. Mauchin, 1 Hilton, 213, cited by plaintiff, which was an action to recover for an injury resulting from the defendant driving against the plaintiff in the highway, in the trial below the defendant asked the court to dismiss the case on the ground that the plaintiff had not shown himself to be free from negligence. He also requested the court to charge the jury that the plaintiff must show that the accident was caused by the negligence of the defendant Mauchin; both the requests were denied. In disposing of these questions in the higher court, the judge says: “ It was not incumbent on the plaintiff to show that he was not guilty of negligence ; that in the absence of proof the presumption would be in his favor. . But the court erred in refusing to charge as requested, that the plaintiff must show that the accident was occasioned by the defendant Mauchin.” Lee v. Riley, 114 Com. Law, also cited by the plaintiff, is a case where the defendant’s horse escaped from his land to that of the plaintiff through a gate which the defendant was bound to keep up, but did not, and while so on the plaintiff’s land injured the plaintiff’s horse. The question tried was, whether the plaintiff was bound to show that the defendant’s horse was vicious, and that defendant knew it. The court held that it was not. Smith, J., in his opinion says: “ The
In this case the plaintiff alleges and puts his case expressly upon the ground that the defendant neglected to keep up the fence, as he was bound to do, and that in consequence of such* neglect the horse and mare came together. To maintain the action he must establish this by his proof.
Upon the facts found by the referee we think it clear that these parties were each under obligation to the other to keep up one half of the division fence according to the terms of the agreement found, certainly until one or the other repudiated it; neither party discharged that duty, but each suffered his part of the fence to go down. The referee reports that he is wholly unable from the evidence to determine over whose part of the fence the mare passed, and does not report in favor of either party. The plaintiff therefore fails to establish the facts necessary to entitle him to recover. He does not establish the fact that it was through the fault or neglect of the defendant that the injury was done.
The pro forma judgment of the county court is reversed and judgment for the defendant.