Klenberg v. Russell

• Citation: 25 N.E. 596,125 Ind. 531
• Decision Date: 29 October 1890
• Docket Number: 14,446
• Parties: Klenberg v. Russell
• Court: Supreme Court of Indiana

25 N.E. 596

125 Ind. 531

Klenberg v. Russell

No. 14,446

Supreme Court of Indiana

October 29, 1890

From the Switzerland Circuit Court.

Judgment reversed, with costs.

W. A Johnston and L. O. Schroeder, for appellant.

W. D Ward, J. A. Van Osdol and G. S. Pleasants, for appellee.

OPINION

Berkshire, C. J.

This action was instituted by the appellee to recover damages for an injury to her person which she alleged she had suffered because of the negligence of the appellant. Originally there were two paragraphs in the complaint, and two parties defendant to the action, but upon the trial the cause was dismissed as to Mrs. Klenberg, and the first paragraph of complaint withdrawn.

The appellant filed a demurrer to the second paragraph of complaint, and the ruling of the court being adverse to him he saved an exception and filed an answer in general denial.

The cause was tried by a jury who returned a verdict for the appellee.

The appellant filed his written motion for a new trial, which the court overruled, and he reserved an exception; thereupon the court gave judgment for the appellee.

There are but two errors assigned, which are as follows: 1. The court erred in overruling the demurrer to the complaint. 2. It erred in overruling the motion for a new trial.

The principal question, and the only one that we need consider is the propriety of the court's action in overruling the demurrer to the complaint. The averments in the complaint in brief are, that the appellee and appellant resided in the city of Vevay, in this State; that the appellant was the owner of a certain cow which he permitted to roam through and along the streets of said city at will, and pasture upon the public commons therein; that during the time said animal was so allowed to run at large in said city, there was in existence no order of the board of commissioners of Switzerland county allowing cows to run at large or pasture upon the public commons; that while thus at large and roaming about in said city said animal attacked the appellee, and with her horns, and otherwise, seriously injured the person of the appellee.

The complaint contains a good averment as to the absence of contributory negligence on her part, but it contains no allegation that the animal possessed a vicious disposition or propensity which inclined it to attack mankind.

Our own cases hold that the common law is in force in this State, except so far as domestic animals are permitted to run at large by the board of commissioners, as provided in section 2637, R. S. 1881, and, therefore, it becomes the duty of the owner to keep them confined to his own premises. Stone v. Kopka, 100 Ind. 458; Cincinnati, etc., R. W. Co. v. Hiltzhauer, 99 Ind. 486; Lyons v. Terre Haute, etc., R. R. Co., 101 Ind. 419; Cincinnati, etc., R. R. Co. v. Street, 50 Ind. 225; Jeffersonville, etc., R. R. Co. v. Underhill, 48 Ind. 389; Jeffersonville, etc., R. R. Co. v. Adams, 43 Ind. 402; Indianapolis, etc., R. R. Co. v. Harter, 38 Ind. 557; Lafayette, etc., R. R. Co. v. Shriner, 6 Ind. 141; Williams v. New Albany, etc., R. R. Co., 5 Ind. 111.

It is the duty of the owner of domestic animals to fence them in where they are such as can be fenced against, and not the duty of his neighbors to fence them out; but it does not necessarily follow that the owners of domestic animals suffered to run at large, or to trespass upon the lands of others, are thereby rendered responsible for all injurious acts committed by such animals while away from the premises of the owner.

In Fletcher v. Rylands, an English case found in Thompson Law of Negligence, on page 1 (but see p. 26), it is said: "The law as to them (speaking of cattle) seems to be perfectly settled from early times; the owner must keep them in at his peril, or he will be answerable for the natural consequences of their escape,--that is with regard to tame beasts, for the grass they eat and trample upon, though not for any injury to the person of others, for our ancestors have settled that it is not the general nature of horses to kick, or bulls to gore." And all of the authorities seem to agree that the owner of a domestic animal is not liable because of a negligent failure to keep it confined on his own premises, except for the consequences which may be anticipated because of its well-known disposition and habits, unless it is possessed of a vicious disposition of which he had notice. In Losee v. Buchanan, 51 N.Y. 476 (but see Thompson Law of Negligence, p. 52), it is said: "As to the former (speaking of domestic animals), the owner is not responsible for such injuries as they are not accustomed to do, by the exercise of vicious propensities which they do not usually have, unless it can be shown that he has knowledge of the vicious...