Hurd v. Lacy

• Decision Date: 26 May 1891
• Citation: 93 Ala. 427,9 So. 378
• Parties: HURD v. LACY.
• Court: Alabama Supreme Court

9 So. 378

93 Ala. 427

HURD v. LACY.

Supreme Court of Alabama

May 26, 1891

Appeal from city court of Decatur; W. H. SIMPSON, Judge.

This action was brought by Ellsworth Lacy against E. O. Hurd to recover damages for injures alleged to have been inflicted upon plaintiff's mule. Code Ala. § 1364, provides that "all inclosures and fences must be made at least five feet high, and, if made of rails, not more than four inches apart, *** or, if made of palings, nor more than three inches apart; *** but a rail fence five feet high, with rails not more than eighteen inches apart, *** shall be a lawful fence so far as cattle, horses, and mules are concerned." The defendant pleaded the general issue and a special plea of contributory negligence. The cause was tried without the intervention of a jury, and the court, after enunciating a special finding, rendered judgment for the plaintiff. Defendant appeals.

Brickell, Harris & Eyster, for appellant.

Wert & Speake, for appellee.

WALKER J.

Appellant had a vacant lot on the corner of Church and Sycamore streets, in the town of Decatur. There were no fences on the sides of the lot next to the two streets. To keep persons from passing across the lot, the appellant had a barbed wire stretched along its side next to one of the streets, a distance of 132 feet. The wire was supported by 5 posts, 30 or 40 feet apart, and was about 4 feet from the ground at the posts. It was stretched by hand only, and sagged between the posts from 8 to 12 inches. There was nothing but the posts and the single wire to warn stock or to prevent them from running against the wire. There was some growth on the lot upon which stock would browse. The appellee's mule, while running at large, came in contact with said barbed wire, and thereby received injuries which totally disabled it. The case was tried without a jury, and the city court found as a fact that said wire fence was not constructed as ordinarily prudent husbandmen usually construct such fences, but was erected negligently, carelessly, and dangerously, and without proper regard for the rights of the plaintiff or of the public. In considering the question of the appellant's liability on the facts of this case, regard is to be had to the state of our law as to the right of owners of domestic animals to suffer them to run at large. In view of the statutes and of the former decisions of this court, no discussion of this subject is called for in the present case. It is well settled that, when such animals go upon lands not inclosed by a lawful fence, as defined by the statute, the owner thereof cannot be regarded as a trespasser; that the owner of cattle and stock has the right to permit them to run at large; and that, in exercising this right, he cannot be treated as guilty of contributory negligence in reference to any injury they may suffer in consequence of the fault of the proprietor of uninclosed premises upon which they may stray or intrude. Code 1886, §§ 1364, 1365; Railroad v Jones, 71 Ala. 487; Pruitt v. Ellington, 59 Ala. 454; Lee Co. v. Yarbrough, 85 Ala. 590, 5 South. Rep. 341; Rowe v. Baber, 8 South. Rep. 865, (decided during the present term.) The common-law rule that the owner of domestic animals must keep them in his own close, and cannot, without becoming a trespasser, suffer them to run at large on the uninclosed lands of others, is completely reversed in this state; so that the general rule here is to fence stock out, not in, the law specially protecting the right of the owner thereof to suffer them to run at large.

Where no right to suffer domestic animals to run at large is recognized, it legitimately follows that the owner thereof being...