St. Louis, Iron Mountain & Southern Railway Co. v. Newman

• Decision Date: 11 April 1910
• Citation: 127 S.W. 735,94 Ark. 458
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY. v. NEWMAN
• Court: Arkansas Supreme Court

127 S.W. 735

94 Ark. 458

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY. v. NEWMAN

Supreme Court of Arkansas

April 11, 1910

Appeal from White Circuit Court; Hance N. Hutton, Judge; affirmed.

Judgment affirmed.

W. E Hemingway, E. B. Kinsworthy, P. R. Andrews and James H Stevenson, for appellant.

The owner of land is under no obligation to inclose it to prevent entry by others. Cooley on Torts, § 337; Waterman on Trespass, §§ 858-873; 3 O. St. 172; 4 O. St. 425; 63 N.C. 346; 1 C. C. R. 272; 97 E. C. L. 271; 11 East 60; 1 Cowen 78. He who suffers his cattle to go at large takes the risk incident thereto. 6 Pa.St. 472; 66 Mo. 325; 47 Ill. 333; 39 Ill. 168; 66 Ill. 327; 57 Pa.St. 129; 100 Ind. 221; 14 Conn. 1.

S Brundidge, Jr., and H. Neelly, for appellee.

It is not contributory negligence to turn one's cows out on the commons. 37 Ark. 562; 46 Ark. 207.

OPINION

FRAUENTHAL, J.

One of appellant's freight trains was wrecked at Bald Knob, and several tank cars, containing raw cotton seed oil, were damaged to such an extent that they leaked. These tank cars were hauled to Judsonia, Ark., and left there for several days, during which time the oil ran out of them in a steady flow. The cars were first placed near a road crossing, and later a short distance therefrom, and the oil ran down into the ditches by the sides of the track and road, and stood in great pools in these ditches and in the road. The grounds at which the cars were placed were uninclosed, and cattle were accustomed to pass over them at will, and there graze at times. A number of cattle drank of this oil, and from twenty to twenty-five head of them died therefrom, amongst which was a cow owned by the appellee. The oil gave forth a great stench, and some of the owners who saw their cattle drinking it drove them away because they feared they would be injured by the oil. The appellant made no effort to guard the cattle from the oil or to drive them away. The plaintiff did not see his cow drinking the oil or know of it until some time afterwards. He sued the appellant, and recovered judgment for the value of his cow, and this appeal is brought to reverse that judgment.

It is urged by counsel for appellant that under the evidence in this case it owed no duty to appellee, and therefore was guilty of no act of negligence for which appellee would be entitled to a cause of action; and that if the appellant was guilty of any negligence it was not the proximate cause of the injury, and on this account the appellee is not entitled to recover for the death of the cow.

The liability of the appellant for the death of the cow depends upon the right of appellee to permit his cow to range at large and the effect that the act of appellant had in permitting the oil to run in the ditches at an unenclosed place near a public road and in thus attracting the cow to drink the oil which caused its death.

The common law made it the duty of the owner of domestic animals to keep them upon his own land; and if he failed in that duty and permitted them to stray upon the land of another, though uninclosed, he was chargeable with a trespass. But such a doctrine is not recognized in this State; the stock owner in this State is not accountable as a trespasser for permitting his stock to stray upon the open premises of another. Little Rock & Ft. S. Ry. Co. v. Finley, 37 Ark. 562.

The owner of domestic animals is therefore guilty of no violation of duty nor of any act of negligence in permitting his cattle to run at large on such uninclosed lands of another. On the other hand, the owner of the land is not required to fence out the stock, and ordinarily owes no duty to one who thus suffers his stock to stray upon his land. He has the right to use his own property as he may see fit, but in that use he has no right to do a negligent act which will result in an injury to another. His liability arises in the use of his premises when he fails to observe for the protection of the property of another that degree of care and precaution which the circumstances demand, whereby an injury results to such other person's property. He does owe therefore, to the owner of straying stock the duty to refrain from attracting or drawing to a dangerous object or substance which he has placed upon his land such stock. Such act becomes one of negligence whereby, if injury results to another, a liability is incurred. The land owner has no right to thus actively draw into peril straying stock. He may not be under any duty to guard the stock from the dangers to which they ordinarily might be exposed, but if he places on his land a dangerous substance which would attract passing animals, and thereby the animals are injured, if the injury is the natural and probable result of the act which a prudent man would have...