Leonard v. Doherty

• Decision Date: 29 November 1899
• Citation: 174 Mass. 565,55 N.E. 461
• Parties: LEONARD v. DOHERTY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 565

55 N.E. 461

LEONARD v. DOHERTY et al.

Supreme Judicial Court of Massachusetts, Norfolk.

November 29, 1899

COUNSEL

Harvey H. Pratt, for plaintiff.

T. E Grover and I. B. Lawton, for defendants.

OPINION

LATHROP J.

But for the fact that the statute of Maine under which the case of Jewett v. Gage, 55 Me. 538, was brought, imposed a penalty upon the owner of swine 'going at large without a keeper,' in addition to provisions similar to those contained in our Pub. St. c. 36, §§ 20-40, that case would be on all fours with the one at bar. In that case the hog was lying by the side of the highway near the owner's house and it was held that the owner was liable for injuries caused by his horse being frightened by the hog. In this commonwealth there is no statute at the present time directly prohibiting swine from going at large on the highway without a keeper. But under the statutes which precede Pub. St. c 36, §§ 20-40, and which are the same in effect, it always has been considered that the various animals mentioned in section 23 are unlawfully on the highway, if there without a keeper. Thus, in Parker v. Jones, 1 Allen, 270, where a cow was impounded by a field driver while grazing by the side of a road, and adjoining the inclosed premises and dwelling of its owner, it was held that the cow was 'going at large without a keeper,' and that it was lawfully impounded. It was said by Mr. Justice Metcalf: 'The owner of land adjoining a highway, and who owns to the center thereof, doubtless has a right to depasture his land in the highway; but he cannot, in virtue of this right, be exempted from the duty of preventing his cattle from going at large thereon without the care of a keeper, but is bound by the same law (Gen. St. c. 25, § 21) which is applicable to others.' And Chief Justice Shaw, in Bruce v. White, 4 Gray, 345, said: 'The provision of law authorizing a field driver to take up cattle going at large, and not under the care of a keeper (Rev. St. c. 19, § 22), has two objects in view,--to secure all persons against direct injury, either to their persons or property, and also to enable owners to regain possession of their stray beasts.' In Barnes v. Chapin, 4 Allen, 444, where a colt, while following its dam, which was led by its owner, was attacked and killed by a stray mare of the defendant, and the latter was held liable for the injury done, it was said by Chapman, J.: 'As to the defendant, it appears that he was in fault in permitting his mare to go at large on the highway without a keeper. Highways are dedicated to the use of travelers. In this commonwealth it has long been regarded as inconsistent with the safety and convenience of travelers to permit horses to go at large on the highway, and such an act is an offense against our travelers. As the plaintiff was using reasonable care, and as the defendant's fault concurred with the act of his animal in causing the injury to the plaintiff's property, the action is well maintained.' See, also, Lyons v. Merrick, 105 Mass. 71; Marsland v. Murray, 148 Mass. 91, 18 N.E. 680.

...