Erdman v. Gottshall

Opinior by William W. Porter, This is a suit for damages for injury to the plaintiff’s corn, committed by two distinct acts of alleged trespass by the defendant’s cows. The first occurred while the cows were being driven upon the public highway, by their escaping into a cornfield of the plaintiff opening upon the highway. The second occurred a week later, when the cows passed out of an inclosed pasture (by reason of two of the fence rails being removed), across another field of the defendant and through a defective line fence into the plaintiff’s cornfield. As to the first act, the court below charged that the plaintiff was entitled to a verdict, although no act of negligence was shown to have been committed by the defendant, the learned trial judge saying, inter alia: “It is not a question as to whether there was negligence on the part of the owner of the cattle in trusting them to those boys, or not; if they did escape from their control, got upon the plaintiff’s land and destroyed her corn, the defendant is liable for whatever damages she sustained.” This was error. Mr. Justice Putnam, in Stackpole v. Healy, 16 Mass. 33, quoting from 22 Edw. 4, 8, pi. 24, states the rule thus: “ If one drive a herd of cattle along the highway where trees or wheat or any other kind of [299] corn is growing, if one of the beasts take a parcel of the corn, if it be against the will of the driver, he may well justify; for the law will intend that a man cannot govern them at all times as he would; but if he permitted them or continued them, etc., then it is otherwise.” A modern author has thus expressed it, “ If one is driving his domestic animals along the public highway, he is bound to observe due care, and if, notwithstanding he is guilty of no negligence, they escape from him and go upon private grounds, he is not responsible provided he removes them within a reasonable time, and what is a reasonable time must depend upon all the circumstances : ” Cooley on Torts, p. 341. See also Tonawanda Railroad Co. v. Munger, 5 Denio, 255; Tillett v. Ward, L. R. 10 Q. B. D. 17. In this case there was no evidence of negligence in the driving of the cows, nor in committing the care of them to the defendant’s sons. The only possible liability was for failure to remove the cattle from the plaintiff’s premises within a reasonable time. This ordinarily would be a question for the jury: Goodwyn v. Cheveley, 4 H. & N. 631. But the evidence adduced at the trial was not sufficient to warrant its submission. The court should, therefore, have instructed the jury for the defendant in respect to the first alleged trespass. Under the act of 1700, the owner of improved land was obliged to fence it, and this not solely for the purpose of restraining his own cattle, but to keep out the roving cattle of others: Gregg v. Gregg, 55 Pa. 227. By the repeal of the act of 1700 by that of 1889, the common-law obligation was restored. That obligation is thus stated by Lord Colekidge, in Tillett v. Ward, L. R. 10 Q. B. D. 17 : “Now it is clear as a general rule that the owner of cattle and sheep is bound to keep them from trespassing on his neighbour’s land, and if they so trespass, an action for damages may be brought against him irrespective of whether the trespass was or was not the result of his negligence.” See also Rossell v. Cottom, 31 Pa. 525; Troth v. Wills, 8 Pa. Superior Ct. 1. Hence, in this case, the duty was upon the defendant to prevent his cattle from roving, and he was “bound at all hazards to confine them on his own land: ” Dolph v. Ferris, 7 W. & S. 367. This statement of the law, as applied to the present case, eliminates wholly the question of the sufficiency of the defendant’s fence, erected within his own [300] property, and which he contends was well built and maintained. The fact that the cattle escaped through this fence by no act of negligence on the part of the defendant is not a defense. There was, however, another fence. This was constructed along the party line between the properties of the defendant and the plaintiff, and through this the cattle passed in committing the trespass. The obligation in respect to the maintenance of such a fence, is determined by Barber v. Mensch, 157 Pa. 390. In that case, Mr. Justice Dean, while holding that the repeal of the act of 1700 by that of 1889 reinstated the common-law obligation on the part of the owner of cattle to restrain their roving propensities at all hazards, held further that the act of 1842, relating to party line fences, was not_repealed, and that in respect to such a fence, it is necessary that lEéowner of cattle should make it “ sufficient ” to restrain their tendency to rove. He, however, under the provisions of that act, holds that the matter of the “ sufficiency ” of such a fence is a question for the jury. Referring to the charge of the trial judge, he says : “ In substance he instructed the jury that if Barber had not by a sufficient partition fence barred out Mensch’s cattle, he could not recover; he should, however, have instructed them if Mensch had not by a sufficient partition fence kept them in, his defense failed, and Barber had a right to recover such damages as he had sustained.” The testimony in the present case, as to the condition of the party line fence, is meager. The defendant himself says, that he kept it in repair, but he admits that at the time the cattle got through, it was not in good order and that he knew it. On this state of the - evidence there was no question to go to the jury as to the sufficiency or insufficiency of the party line fence. If there had been a conflict of testimony on this point, it would have been the duty of the court to have submitted the question to the jury. No injury was done the defendant, therefore, bjr the failure of the court to present this aspect of the case to the jury.; but, as this case must be retried, the reference herein to the law relating to line fences is made lest we might be construed to approve the general statement of the law, contained in the charge, as applicable to such fences. The second and fourth assignments of error are sustained; the judgment is reversed, and a new venire awarded- . ■