Walker v. Herron

• Decision Date: 01 January 1858
• Citation: 22 Tex. 55
• Parties: J. G. WALKER v. ANDREW HERRON.
• Court: Texas Supreme Court

22 Tex. 55

J. G. WALKER

v.ANDREW HERRON.

Supreme Court of Texas.

1858.

The following charge, given in the court below, held to be erroneous, viz.: “The plaintiff would not be guilty of such negligence as would preclude him, in a proper case, from recovering, if he was guilty of no other negligence than permitting his stock to remain in the range, which he used with others as public range, before the diseased stock of defendant made its appearance. If, however, plaintiff, or his agent, knowingly permitted his stock to run with the diseased stock of defendant, on that portion of defendant's own land, where defendant's stock were kept and herded, after having knowledge of the disease, and thereby his stock became diseased, and his loss resulted, he would not, in that event, be entitled to recover.”

The first part of this charge would leave the impression that, if the plaintiff's stock were in that range, he having before that time used it in common with others, it was not negligence in him to let them remain there as before, and if loss resulted to the plaintiff, the defendant would be responsible: this is not correct.

When the plaintiff was warned of the danger, it was equally incumbent on him to keep his stock away from the defendant's, as it was upon the defendant to keep his upon his own premises, and prevent their running at large and communicating the disease to the plaintiff's stock.

If there was danger, and the plaintiff was apprised of it, and by the use of ordinary diligence, could have avoided the injury to his own stock, his failure to do so was negligence, and he cannot hold the defendant responsible.

If the plaintiff negligently suffered his stock to mix with the defendant's, upon defendant's premises, or elsewhere, having been apprised of the danger, he could not recover.

But the principal objection to the latter part of the charge is, that it leaves an inference that, to prevent a recovery, the injury must have been occasioned solely by the plaintiff's negligence, suffered in a particular manner.

To entitle the plaintiff to recover, he must have satisfied the jury that he had used ordinary care, or that the injury was wholly attributable to the defendant's fault.

The jury having asked, “Would defendant's enclosed lands be considered his premises? If yea, and the defendant, or agent, permitted his stock to run at large, at night, would it be negligence in the plaintiff, or agent, to suffer his stock to do the same?” To which the court answered: “It would not.” Held, objectionable, as a charge upon the weight of evidence.

It was also erroneous, in making defendant's negligence an excuse for the plaintiff's.

The rule of law in this class of cases is, that if by ordinary care, the plaintiff might have avoided the consequences of the defendant's negligence, he is not entitled to recover.

APPEAL from Guadalupe. Tried below before the Hon. A. W. Terrell. Suit by appellee, for damages sustained from loss of horses in consequence of a contagious disease taken by appellee's horses, from those of appellant; and which were brought by appellant into the range where appellee's had previously been kept. Each of the parties had stock pens upon their own lands, which were in the same stock-range. Appellee's horses were in the range, at the time appellant brought his stock home. Appellant's horses, at that time, appeared well, but in about ten days, the disease broke out among them. There was testimony on the part of appellant, that he had given warning to his neighbors, and the appellee, among others, to keep their horses away from his, on account of the disease among them. As the case turned entirely upon the charge of the court to the jury, which is quoted in the opinion, it is unnecessary to state the facts more fully.Jno. Ireland, for appellant. This case cannot be distinguished from that long list of cases found in the books, under the title of “negligence,” or “negligence of both parties.” We understand the law to be, in all actions of this character, that if the plaintiff has been guilty of any negligence, no matter how slight, he cannot recover; for, say the courts, it must clearly appear that the plaintiff has not, in the slightest degree, contributed to his own loss; and the following authorities are submitted in support of this position. And on this point, the verdict is against the evidence: see testimony of Awalt, Hodges, Gillespie, and Hamilton.

Wood v. Waterville, 5 Mass. 294; Fleytas v. Pontch. R. R. Co. 18 La. 339; Lesseps v. Pontch. R. R. Co. 17 La. 361; Smith v. Smith, 2 Pick. 621; 3 Stark. Ev. 986; Harlow v. Humiston, 6 Cow. 187; Bush v. Branard, 1 Cow. 78; Thompson v. Bridgewater, 7 Pick. 187; Lane v. Crombie, 12 Pick. 176; Williams v. Holland, 6 C. & P. 23; Pluckwell v. Wilson, 5 C. & P. 375; 19 Wend. 401;21 Id. 619;3 Id. 391;Brown v. Maxwell, 6 Hill, 592;12 Barb. 419; 18 Mo.; 23 Conn. 101, 339, 437; Autocrat and Magnolia, Shute v. Goslee, and Goslee v. Shute, La. C. C. 3 Am. Law Reg. 465; 2 Greenl. Ev. § 473; Munger v. Tonaw. R. R. Co. 4 Com. 349; Galena R. R. Co. v. Fay, 16 Ill. 558.

Chandler, Turner, and J. J. Thornton, for appellee. The first error assigned relates to the inquiry of the jury as to whether, if the defendant suffered his stock to run at large, at night, if it would be such negligence on the part of the plaintiff, to suffer his own to run at large, at night, as would preclude his recovery, to which the court answered, “it would not.” The court in its general charge (record, page 13) added a proviso to the charge, that caused the jury to make the inquiry.

This answer was clearly right, because in our state all lands not enclosed are common; and the defendant could only be required to control and pen his stock, because of the infectious disease which rendered them dangerous and a public nuisance.

The right of the plaintiff depends upon the rule of law which declares, that no man shall use his own property in a manner that causes injury to another, without being liable. We admit the defendant's right to keep horses and to graze them on any unenclosed lands; but we do not admit that he has a right to keep horses that are a nuisance, and that have a contagious and fatal disease, when others will suffer thereby; and not be responsible to the persons injured. This principle is found, wherever the question has been made, and so universal is the rule, that it has become a legal maxim. Broom, Leg. Max. 25; Scott v. Bay, 3 Md., the closing paragraphs, pages 445, 446; Fish v. Dodge, 4 Denio, 311;Boughton v. Carter, 18 Johns. 405. The only exception to this rule is, where the act complained of is done by public authority, and for the public good. This doctrine is reviewed in the case of Hooker v. The New Haven & North. Co. 14 Conn. 146; also 1 Eng. C. L. 500.

WHEELER, CH. J.

The exception to the third instruction of the court, and the response of the court to the question propounded by the jury, we think well taken.

The instruction is as follows: “The plaintiff would not be guilty of such negligence as would preclude him, in a proper case, from recovering, if he was guilty of no other negligence than permitting his stock to remain in the range, which he used with others as public range, before the diseased stock of defendant made its appearance. If, however, plaintiff, or his agent, knowingly permitted his stock to mix with the diseased stock of defendant, on that portion of defendant's own land, where defendant's stock were kept and herded, after having knowledge of the disease, and thereby his stock became diseased, and his loss resulted, he would not, in that event, be entitled to recover.”

The proof is, that after the defendant bought his stock, and brought it upon his premises, the disease made its appearance....