Howe v. Oldham

PRATT, J. This is an action for an assault and battery. The plaintiff obtained a verdict for $500, and entered judgment thereon. The defense was that defendant was the servant of one Harriman, who owned, and was in possession of, certain lands in Waterbury, ■Orange county, through which a private road ran, and that plaintiff wrongfully entered on this private road, and attempted to build a bridge over a brook which crossed it; that defendant occupied the brook at the road crossing with a wagon, under directions of his master, and plaintiff attempted to remove the wagon, as an obstruction, whereupon defendant, in defense of his master’s property, struck plaintiff, using no more* force than was necessary to defend the property. The plaintiff was the commissioner of highways, and claimed that the road was a public highway of the town. If this road was the private property of Harriman, he had the right to prevent plaintiff and his men from entering upon it, because the undisputed evidence shows that Harriman was in possession, through defendant, who was his agent and servant for that purpose, with authority to prevent trespass; and defendant, in the discharge of his duty, had the right to use reasonable and sufficient force to prevent the trespass. See Pen. Code, § 223; People v. Kane, 131 N. Y. 111, 29 N. E. Rep. 1015. If, on the other hand, the road was a public highway, the plaintiff had the right, and, under the circumstances disclosed by the evidence, it was his duty, to remove this wagon, and proceed with the work of building the bridge. This question of fact—whether this was a public or private road—was therefore an important one, because there was conflict of testimony as to the force used by defendant, and the circumstances under which it was used. There was conflict of testimony on the question of the character of this road,—whether public or private. The learned trial judge held, and charged the jury, among other things, that upon the evidence there was no defense, in any view, and that the only question for the jury was upon the amount of damages. Defendant excepted. We think the exception well taken. If, as already stated, this was Harriman’s property,—the defendant being his servant, and in possession, with authority to prevent the trespass,—and if he used no more force than was reasonable, his justification was complete. The court was requested to put this view of the case to the jury, but refused, and defendant excepted. We think this exception well taken. Judgment reversed, and new trial ordered, with costs of this appeal to the defendant, to abide the event of the action. DYKMAN, J., concurs.