Burleigh v. Hines

• Decision Date: 12 May 1904
• Citation: 99 N.W. 723,124 Iowa 199
• Parties: BURLEIGH & JACKSON v. JOHN P. HINES, Appellant
• Court: Iowa Supreme Court

99 N.W. 723

124 Iowa 199

BURLEIGH & JACKSON v. JOHN P. HINES, Appellant

Supreme Court of Iowa, Des Moines

May 12, 1904

Appeal from Cedar District Court.--HON. H. M. REMLEY, Judge.

ACTION to recover damages sustained by plaintiffs as owners of nineteen thoroughbred and registered Hereford heifers which were gotten with calf by defendant's ill-bred and unregistered bull. Verdict for plaintiffs for $ 950, from judgment on which defendant appeals.

Affirmed.

Wright Leech & Wright and Dawley, Hubbard & Wheeler, for appellant.

Jamison & Smyth and C. J. Lynch, for appellees.

OPINION

MCCLAIN, J.

The contentions for appellant are, first, that plaintiffs were negligent; second, that plaintiffs elected another remedy and, third, that the jury were erroneously allowed to include damages as to one heifer which was not the property of the plaintiffs at the time the action was brought. The errors relied upon with reference to these matters are presented in different methods, and we can satisfactorily dispose of the case assuming that each of these questions was properly raised in the trial court.

I. The action is predicated on Code, section 2312, which requires the owner of certain male animals, including bulls, to restrain the same, and inferentially, therefore, makes the owner of such an animal liable for damages occasioned by his being at large. That the bull of defendant was at large--that is, off the premises of the defendant--at the time the injury complained of was committed, was shown by the evidence, and was necessarily found by the jury in reaching their verdict and defendant was unquestionably answerable for the injury committed, unless plaintiffs were at fault in some way contributing to such injury. It is conceded that the partition fence between the field of defendant where the bull was kept, and the field of plaintiffs where the injury was committed was not a lawful fence, and that it had not been divided as between the owners of these adjoining premises. But, so far as defendant's wrong was concerned, this was immaterial, for under the statutory provision just referred to it was the duty of defendant to restrain his bull, and prevent him from going upon the premises of another. The fault which counsel for defendant seek to impute to plaintiffs by way of contributory negligence is the act of putting their heifers into a field adjoining that in which defendant's bull was kept, with the knowledge that the dividing fence was not adequate, and that defendant's bull was likely to break through this division fence, and commit the injury complained of. It is no doubt true that one injured by an animal unlawfully at large may so far contribute to the injury as to preclude himself from recovering damages from the owner of the animal. Meier v Shrunk, 79 Iowa 17, 44 N.W. 209. But recovery should be denied to the plaintiff under such circumstances only where there is some fault on his part having proximate connection with the injury suffered. We think plaintiffs were not bound to anticipate that defendant's bull, being lawfully on defendant's premises, would not be restrained from unlawfully running at large and committing an injury. Plaintiffs had a right to the use of the premises on which their heifers were kept, and it cannot be imputed to them as negligence that they used such premises in a proper way. They...