Haughey v. Hart

• Decision Date: 19 October 1883
• Citation: 62 Iowa 96,17 N.W. 189
• Parties: HAUGHEY v. HART.
• Court: Iowa Supreme Court

62 Iowa 96

17 N.W. 189

HAUGHEY

v.HART.

Supreme Court of Iowa.

Filed October 19, 1883.

Appeal from Buena Vista circuit court.

This is an action to recover damages for the value of a horse which it is alleged was killed by falling into an unfinished well, which the defendant left open and unprotected upon her uninclosed land. There was a demurrer to the petition, which was sustained, and plaintiff appeals.Snelling & Irwin, for appellant.

Gregory & Bailie, for appellee.

ROTHROCK, J.

The following is a copy of the petition to which the demurrer was sustained: “That the defendant was for the six months last past, and is now, the owner of the following described premises, to-wit: The north half of the north-east quarter of section 29, Grant township, Buena Vista county, Iowa; and that said premises were in the month of January, 1883, and still are, unfenced. That defendant caused and permitted to be dug on said unfenced premises a certain dangerous excavation, or well, which was and is immediately adjacent to the highway, and knowingly and negligently permitted the same to remain wholly uncovered and unguarded, although she well knew and had been advised that said dangerous excavation was frequented by stock that was running at large; yet notwithstanding these facts she still permitted said dangerous and unsafe excavation to be and remain in the same unsafe condition, and removed from said premises, leaving no one in charge thereof, and taking no precaution whatever to prevent stock from falling into said excavation or well. The plaintiff further states that the police regulation restraining stock from running at large is not now, and never has been, in force, as by statute provided, in the county of Buena Vista, Iowa; that in and during the month of January, 1883, a certain cream-colored horse belonging to the plaintiff, without any negligence on his part, strayed into the premises of this defendant and fell into said dangerous well or excavation and was thereby killed, without any fault or negligence on the part of this plaintiff.”

The demurrer is based upon several grounds, two of which only need be mentioned. It is claimed in one of these grounds “that there are no facts showing that the negligence of defendant caused the death of the horse;” the other is that “said petition does not show that said horse was lawfully on defendant's premises at the time of the injury complained of.” The facts upon which the alleged negligence is based, briefly stated, are that the land of the defendant is unfenced, and that upon the land, and immediately adjacent to a highway, she made a dangerous excavation, and negligently allowed the same to remain uncovered. although she well knew that the place where said excavation was situated was frequented by stock running at large. Was this negligence for which plaintiff was liable? We think the liability depends upon the fact whether or not the plaintiff's horse was rightfully running at large upon defendant's premises. It is claimed that, as the county of Buena Vista has not restrained stock from running at large, the horse was rightfully at the place where he was killed. It was long ago held in this state that the owner of cattle running at large upon the land of another...