Sisk v. Crump

• Decision Date: 06 December 1887
• Parties: Sisk v. Crump.
• Court: Indiana Supreme Court

112 Ind. 504

14 N.E. 381

Sisk

v.Crump.

Supreme Court of Indiana.

December 6, 1887.

Appeal from circuit court, Bartholomew county; Nelson R. Keyes, Judge.

Sarah F. Sisk, plaintiff, sued F. Crump, defendant, for damages for the death of her horse by being entangled in a barbed-wire fence. Demurrer to the complaint sustained, and defendant appealed.

Francis T. Hord and M. D. Ewing, for appellant. Norton & Smith, for appellee.

Elliott, J.

Stated in a condensed form, the material allegations of the appellant's complaint are these: On and prior to May 5, 1885, the appellee owned 15 acres of land, bounded on the east by a public street of the city of Columbus, and along the line of this street he had constructed a barbed-wire fence. The fence was composed of wooden posts and five strings of barbed iron wire. It was negligently constructed; the posts being insufficient to keep the wire at a proper tension, and the wires were not drawn into proper position. The wires were armed with sharp iron barbs, placed along them at a distance of two inches apart. They were negligently suffered to sag down near the ground. They hung loosely from the posts, and in such a condition as that a horse, coming in contact with them, would be entangled and thrown down. The fence was not such as a good husbandman would construct or maintain, but was insufficient and dangerous; its height not being sufficient to keep off horses or cattle, and there being no plank or other thing to warn them of the existence of the fence. The fence could have been made safe by placing a board along the top of it, and the wires could have been kept at a proper height and tension, but the defendant, knowing its dangerous condition, suffered it to remain insufficient to warn off animals. It was not sufficient in height, as the defendant knew, to prevent animals from attempting to cross it. On the fifth day of May, 1885, the horse escaped from the stable of the plaintiff, in which it had been fastened, and, without fault on her part, wandered upon the street bounding the defendant's land. At that time the land was covered with green grass, on which the horses of the appellee were feeding. The appellant's horse was attracted by the green pasture, and the horses feeding on it, and attempted to cross into the field. In attempting to cross the fence it was, by reason of the dangerous and unsafe condition thereof, entangled in the loose wires, thrown down, and killed. The proper county and city officers had, by orders duly made, authorized owners of horses and cattle to permit them to run at large.

The complaint cannot be upheld on the ground that erecting a barbed-wire fence along the line of a highway, but on private property, is in itself an actionable wrong. The courts cannot say, as matter of law, that erecting such a fence is a tort. We cannot, therefore, yield to the contention of counsel, that the act of an individual in erecting a fence of that kind in itself renders him liable to one who sustains an injury. Courts cannot judicially know that such a fence is dangerous. Our statute recognizes the right to use such fences, for it is expressly provided that railroad companies may use them in fencing their tracks. Act 1885. The complaint before us, however, does does not rest solely on the theory that the erection of a barbed-wire fence is necessarily a tort. It goes much further, and, with great particularity, avers that the fence was so constructed as to be dangerous to horses and cattle passing along the highway. Nor does it stop there. It avers that beyond the fence was growing grass on which horses were feeding, and that these things would attract horses, and induce them to attempt to cross the fence, and enter the inclosure. There are therefore two important elements to be considered: First, the negligence in constructing and knowingly maintaining a dangerous fence along the line of a highway; second, the probability that animals would be attracted by what they saw within the inclosure, and would probably attempt to enter it. These two elements exert an important influence upon that branch of the case which presents the question whether the appellee's act was culpably negligent.

It is well settled that a lawful act may be done in such a negligent manner as to make the person who does it a wrong-doer. It may be, therefore, that, although erecting a barbed-wire fence is not in itself a tort, yet the manner in which it is constructed and maintained may be such as to make the person erecting and maintaining it guilty of negligence. A thing may not be dangerous if properly constructed, but dangerous if improperly constructed. The complaint before us shows that the appellee was negligent in constructing and maintaining the fence, and on that point we have no hesitation in declaring it to be sufficient. Negligence is not always actionable. A man may do many negligent things on his own premises, and yet not incur any liability. Negligence is only actionable where it involves a breach of duty. This rule is illustrated by the cases which hold that there can be no recovery for injuries caused by the negligence of the owner of land in suffering the premisesto become unsafe, unless the injured person came on the land under an express or implied invitation. Nave v. Flack, 90 Ind. 205;Railroad Co. v. Griffin, 100 Ind. 221;Railroad Co. v. Pitzer, 109 Ind. 179, 6 N. E. Rep. 310, and 10 N. E. Rep. 70. There can, as a general rule, be no action, although there is negligence, unless the party guilty of negligence was under some duty to the person who sustains the injury. While it is essential that the defendant should be under some duty to the plaintiff, it is not essential that the duty should be directly owing to him as an individual. A defendant who owes a duty to the community owes it, as a general rule, to every member of the community, and, if any member suffers a special injury from a breach of that duty, an action will lie.

The pivotal question in this case is, therefore, whether the defendant was under a general duty to maintain the wire fence so that it would not inflict injury upon animals which might be tempted from the highway into his inclosure. The theory of the complaint is that the horse was injured while attempting to cross the fence into the defendant's inclosure, and not that it was injured while simply wandering along the highway. If the horse had been injured while going along the highway, a very different question would have been presented; but that is not the case which the complaint undertakes to make. The case is therefore not governed by the authorities which hold that an action will lie against one who makes the use of a highway dangerous; and the cases of Graves v. Thomas, 95 Ind. 362;Beck v. Carter, 68 N. Y. 283, are not in point. The complaint does not aver that the fence was intentionally made dangerous for the purpose of injuring persons or animals that might trespass on the...