Riviere v. Pemberton
| Decision Date | 02 April 1891 |
| Citation | 48 N.W. 406,46 Minn. 5 |
| Parties | Frank La Riviere v. Joseph W. Pemberton |
| Court | Minnesota Supreme Court |
Action brought in the district court for Hennepin county to recover $ 475, the value of cows drowned in a lake near plaintiff's premises, from which the defendant had cut ice, and had neglected to fence the openings thus made. At the trial, before Hicks, J., a dismissal was ordered at the close of plaintiff's case, and he appeals from an order refusing a new trial.
Order affirmed.
Little & Nunn, for appellant.
Weed Munro, for respondent.
The plaintiff has for many years occupied a farm on the south side of a small meandered body of water, called "Red Rock Lake." His barn is about 160 rods from the lake. In the winter season he has been accustomed to water his stock on the south side of the lake, by means of holes cut in the ice. His cattle also "used to go" for water to a place on the westerly shore of the lake, some 40 rods from the plaintiff's watering place, where a neighbor, one Mitchell, owning the land on the west shore, was accustomed to water his stock. When the plaintiff's cattle were turned out of his barn there was nothing to prevent their going to the lake, which was unfenced. It had been the custom of the plaintiff and his neighbors for years to cut ice and take it from the lake, probably for domestic use, and cattle allowed to go to the lake unattended were liable to be drowned at places where the ice had been cut and removed. The plaintiff had lost cattle in that way prior to the occurrence upon which this action was based. He knew and appreciated this danger. Before the accident complained of, he had cautioned a servant, employed by him to take care of his stock, not to let the cattle go to the lake unattended explaining the danger just referred to. A day or two after that, on a cold day in January, this servant let the cattle out of the barn. Unobserved by the servant two of the cows went to the lake, and at a place some 60 or 80 feet from Mitchell's watering place they were drowned, having fallen into an opening in the ice some 12 or 15 feet square which the defendant had caused by cutting and removing the ice. The defendant and others had long been suffered by Mitchell to go to the lake over his land for such purposes. The plaintiff had no knowledge that this hole had been made in the ice, or that there was any such opening in the vicinity at that time. He seeks by this action to recover the value of the cattle, his action being based on the negligence of the defendant in cutting the ice and leaving the opening unguarded. At the trial, the plaintiff's case being as above indicated, the court dismissed the...
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