Lucia v. Meech

• Decision Date: 14 March 1896
• Parties: LUCIA v. MEECH.
• Court: Vermont Supreme Court

34 A. 695

68 Vt. 175

LUCIA

v. MEECH.

Supreme Court of Vermont. Chittenden.

March 14, 1896.

Exceptions from Chittenden county court; Russell S. Taft, Judge.

Action on the case by O. C. Lucia against M. J. Meech. Plea, the general issue. Verdict and judgment for plaintiff. Defendant excepts. Affirmed.

The plaintiff's testimony tended to show that he hired the defendant to pasture his horse for the season; that the horse, while in the defendant's pasture, escaped through the fence, which was defective at a particular point, into an adjoining meadow, and thence onto the railroad track, where it was killed, there being no fence between the meadow and the railroad track. The defendant claimed that at the time she took the horse to pasture it was agreed between her and the plaintiff that she was to assume no risk, but the plaintiff denied this, and testified that no arrangement in that respect was made. The defendant offered testimony tending to show that she had kept horses of very great value for men who were familiar with the way in which horses ought to be kept and that prudent men in the vicinity regarded her pasture as a reasonably safe one; that it was her rule not to take risks, and that this rule had been applied in several particular instances; that the fences around her pasture were in good condition, and compared favorably with other fences in the vicinity. The foregoing testimony was excluded, and the defendant excepted. The second, third, and fourth requests of the defendant were as follows: "If the jury find that by the contract between the parties the horse was to be pastured in the lot in which it was placed, and that at the time the horse was turned into the lot the plaintiff was acquainted with the condition and quality of the fence, he cannot recover in this action. (3) Or if the jury find that after the horse was placed in the defendant's pasture, and before it escaped, the plaintiff became acquainted with the condition of the fence, and voluntarily permitted the horse to remain there, without complaint or objection, he cannot recover in this action. (4) If the jury find the defect, if any, in defendant's fence, was not the proximate cause of the injury to the plaintiff's horse, no recovery can be had by plaintiff in this action, even though the jury should find that the defendant's fence at the point of escape was insufficient" The court declined to charge in accordance with these requests, and the defendant excepted. The cross-examination of the plaintiff had developed the fact that he had frequently been to the pasture while his horse was there, and had seen one or two defects in the fence at other points, but there was no evidence tending to show that he had any knowledge of the particular defect in question.

D. J. Poster and R. E. Brown, for plaintiff.

C. M. Wilds and E. R. Hard, for defendant.

ROSS, C. J. The defendant was the bailee of the plaintiff's horse to pasture it during the summer of 1894. In her discharge of the bailment it was her duty—unless some contract existed varying that duty—to maintain, or cause to be maintained, a legal fence between the pasture and the meadow of Root The...