Bethea v. Taylor

By JUDGE CRENSHAW. In this court, the plaintiff in error contends, that the setting of the gun within his enclosure, for the purpose expressed in the bill of exceptions, was a lawful act, and did not amount to culpable negligence on his part; and that, if he was blamable in this, yet the act of the negro, in bringing and tying the horse within the defendant’s enclosure, if not unlawful, was a negligence, equally culpable; and that, the injury being the result of the concurrent negligence of both parties, the defendant cannot be made liable. If the first branch of this proposition be true — if the defendant did no more than what he might lawfully do — then, it is evident, that he cannot be liable for the plaintiff’s loss.— But I hold, that if not unlawful, it was, at least, a negligent act of the defendant, to set his gun within his enclosure,' around which the fence was only two or three feet high, and into which the cattle, and other stock of his neighbors, running at large, in the woods, might lawfully enter at pleasure. If his fence had been lawful, he would then be blameless. The second branch of the proposition involves the inquiry, whether the plaintiff was or was not, either by himself or his servants, guilty of negligence, and without which, in all probability, the injury would not have happened. In all rwohn484 bility, if the negro had not carried the horse, and tied him within the defendant’s enclosure, he would not have been shot. Neither law nor policy, will permit a slave, in the night, and without his master’s knowledge pr consent, to ride his horse to a negro quarter, where there is no overseer, and where the owner resides at some distance. It-may be the misfortune of -the master to own such a slave; but the master is not entirely blameless, in suffering his slave to depart so far from the ordinary rules of obedience, as secretly to take away his property, at night, and subject it to the hazard of destruction. It was an unlawful trespass, in the negro, to ride the horse into the .defendant’s enclosure, and to visit his negro quarter, without permission. It was the duty of the master, to have kept his horse and his negro at home; arid, under the circumstances, the defendant was not bound to use even ordinary precaution: and, if the horse was injured, or destroyed, it must be imputed, as much to the negligence of the.plaintiff, and the improper .conduct of his slave, as to that of the defendant. And, if so, the defendant was not liable, and the charge was erroneous. To this effect, is the law, as stated in the case of Butterfield v. Forrester;a which was an action, for obstructing the highway, by means of which, the plaintiff, who was .riding along the road, was thrown down with his horse, and injured. It was held, the action could not be maintained, because the plaintiff rode with, violence, and without ordinary care. In that case, Lord Ellenborough expressly says, “ that a party is not to cast himself upon an obstruction, which has been made by the fault of another, and avail himself of it, if he do not, himself, use common and ordinary caution to be in the right. That one person being in fault, will not dispense with another’s using ordinary eare for himself. ' That two things must coneur, to support this-action; an obstruction in the road, by the fault of the defendant, and no want of ordinary care, to avoid it, on the part of the plaintiff.” To the same effect is the law cited,b where it is said, that “if the immediate and proximate cause of damage, be the unskil-fulness of the plaintiff, he cannot recover. In that case, some brick-layers,.employed by the defendant, had laid aheap of lime-rubbish before the defendant’s door; the plaintiff was passing, in a single-horse- chaise — the wind suddenly blew the lime-rubbish, so as to frighten the horse; he started on one side, and would have run against a wagon, but the plaintiff hastily 'pulled him around, and the horse ran over a lime-heap, lying before another man’s door, which broke the shaft — the [485] horse ran away, and hurt the plaintiff. It was held, that the immediate and proximate cause of the injury, was the fulness of the driver, and that, therefore, the action could not be maintained. The principle settled in these cases, is the same involved the one under consideration. The injury may be imputed as much to the negligence 'of the plaintiff, as of the defendant; and, if so, the defendant was not liable, and so should the law have been stated to the jury. The court are of opinion, that the judgment should be reversed, and the cause remanded. JUDGE PERRY dissenting. Reversed and remanded. JUDGE SAFFOLD not sitting. Footnotes [a] 11 East, 60. [b] 2Wheat's Sel. 852.