Leonard v. Doherty

Lathrop, J. But for the fact that the statute of Maine under which the case of Jewett v. Gage, 55 Maine, 538, imposed a penalty upon the owner of swine “ running at large without a keeper,” in addition to' provisions similar to those contained in our Pub. Sts. c. 36, §§ 20-41, that case would be on all fours with the one at bar. In that case the hog was lying by the side of the highway near the owner’s house, and it was held that the owner was liable for injuries caused by his horse being frightened by the hog. In this Commonwealth there is no statute at the present time directly prohibiting swine from going at large on the highway, without a keeper. But under the statutes which precede the Pub. Sts. c. 36, §§ 20-40, and which are the same in effect, it [571] always has been considered that the various animals mentioned in § 23 are unlawfully on the highway, if there without a keeper. Thus in Parker v. Jones, 1 Allen, 270, where a cow was impounded by a field driver, while grazing by the side of a road, and adjoining the enclosed premises and dwelling of its owner, it was held that the cow was “ going at large without a keeper,” and that it was lawfully impounded. It was said by Mr. Justice Metcalf : “ The owner of land adjoining a highway, and who owns to the centre thereof, doubtless has a right to depasture his land in the highway; but he cannot, in virtue of this right, be exempted from the duty of preventing his cattle from going at large thereon without the care of a keeper, but is bound by the same law (Gen. Sts. c. 25, § 21) which is applicable to others.” And Chief Justice Shaw in Bruce v. White, 4 Gray, 345, said: “ The provision of law, authorizing a field driver to take up cattle going at large, and not under the care of a keeper, (Rev. Sts. c. 19, § 22,) has two objects in view—to secure all persons against direct injury, either to their persons or property; and also to enable owners to regain possession of their stray beasts.” In Barnes v. Chapin, 4 Allen, 444, where a colt while following its dam, which was led by its owner, was attacked and killed by a stray mare of the defendant, and the latter was held liable for the injury done, it was said by Chapman, J.: “ As to the defendant, it appears that he was in fault in permitting his mare to go at large on the highway without a keeper. Highways are dedicated to the use of travellers. In this Commonwealth it has long been regarded as inconsistent with the safety and convenience of travellers to permit horses to go at large on the highway; and such an act is an offence against our statutes. As the plaintiff was using reasonable care, and as the defendant’s fault concurred with the act of his animal in causing the injury to the plaintiff’s property, the action is well maintained.” See also Lyons v. Merrick, 105 Mass. 71; Marsland v. Murray, 148 Mass. 91. It remains to be considered whether the instructions requested should have been given. The first request for instructions was given. The second was waived. The third relates to the neces [572] sifcy of showing the viciousness of the swine, and that the defendants knew of such viciousness ; but the action does not proceed upon the ground of the viciousness of the swine, but on the ground of the negligence of the owner in failing to keep his swine safely enclosed. Lyons v. Merrick, 105 Mass. 71, 76. The fourth request is a correct statement of an abstract proposition of law; but it has no application to this case. At common law, an owner must keep his cattle on his own land at his peril. Lyons v. Merrick, ubi supra. The fifth request was rightly refused, for the reasons already given. The sixth request is waived. The seventh and eighth requests were properly refused, under the authorities before cited. The ninth request is evidently based on Holden v. Shattuck, 34 Vt. 336; but that case was not under a statute similar to ours. We see no objection to the admission of the evidence excepted to, limited as it was in the charge. The defendants make no contention in their brief that only one of the defendants can be held liable, in any event, and we have not considered this question. No exception was taken to the charge except so far as it was inconsistent with the requests, and to the refusals to rule. It is, therefore, unnecessary to consider it. Commonwealth v. Walsh, 162 Mass. 242. Fairman v. Boston & Albany Railroad, 169 Mass. 170, 174. Exceptions overruled.