Shipley v. Colclough

• Decision Date: 02 July 1890
• Citation: 81 Mich. 624,45 N.W. 1106
• Court: Michigan Supreme Court
• Parties: SHIPLEY v. COLCLOUGH.

45 N.W. 1106

81 Mich. 624

SHIPLEY v. COLCLOUGH.

Supreme Court of Michigan

July 2, 1890

Error to circuit court, Saginaw county; C. H. GAGE, Judge.

Brooks & Conway, for appellant.

Herbert A. Forrest, for appellee.

CAHILL, J.

In December, 1888, the defendant, Colclough, was the owner of land lying on both sides of a public highway in Buena Vista township, Saginaw county. He was accustomed, at that time, to drive his cattle every morning from his field on the south side of this highway, and in a westerly direction, about 45 rods, along the highway, and into his field on the opposite side of the road. This highway was very little traveled, but crossing it at nearly right angles, and not far from this place, was the Genesee plank-road, a great thoroughfare. Plaintiff's son, Colon Shipley, was in the habit of driving plaintiff's cattle along this highway every morning, to a field east of Colclough's lands. In doing this, he drove a horse hitched to a sulky. Plaintiff's claim is that Colon, returning one morning from this task, and riding in the sulky, was met by two of Colclough's cows on this road opposite Colclough's land; that one of the cows hooked and pushed the other against and down under the wheel of the sulky, and that the cow, in rising up, overturned the sulky, and it was thus broken and otherwise injured. He further claims that the cows were at the time running at large by reason of defendant's carelessness and negligence in turning them into the road, and in going off and leaving them unattended. It was admitted that the statute prohibiting cattle running at large in the highway was in force there at that time. Plaintiff sues for damages thus done to the sulky.

Colclough defended on two grounds, claiming: (1) That the cattle were not at large; (2) that, even if they were at large, plaintiff could not recover, because the circumstances did not constitute actionable negligence, and because it was not shown that the cows had any vicious or dangerous habit or propensity which should have led defendant to anticipate and guard against such injury, and the defendant took the position that the fact of the cows being at large in the public highway did not change this rule. This raises the only question in the case.

The judge charged the jury as follows: "By the statutes of our state cattle are not allowed to run at large, unless there is permission granted by the board of supervisors in certain cases. For the purpose of this case I might say to the jury that cattle of the character described by the witnesses here are not allowed to run at large in the highway in the township of Buena Vista, this county. Where cattle are in the highway, and are attended by the owner, or some...