Gooch v. Bowyer

GIilXj, J. Plaintiff and defendant owned and occupied adjoining pastures. The fence, as originally built, was entirely on plaintiff’s land, and was a rail or worm fence. In the spring of 1892, defendant reset the fence and constructed it on the division line. In order to 'make it more effective in turning stock, defendant, without the knowledge or consent of plaintiff, placed a barbed wire on the plaintiff’s side of the fence, fasten [208] ing the same to the rails and about twenty inches or two feet from the ground. In the month of June following, plaintiff’s saddle horse, which was left grazing in his (plaintiff’s) pasture, got one fore foot over this wire, and in the struggle to be released, his foot was so cut and mangled that he died. Thereupon plaintiff brought this action for damages, and on a trial in the circuit court recovered judgment for the value of the horse, and defendant appealed. To reverse the judgment, defendant relies on the court’s refusal to give the following instruction, asked by him at the trial: “4. The jury are instructed, if they believe, after Bowyer had put the barb wire on the fence, that the plaintiff knew of the same being on said fence, and permitted the horse to remain in the pasture, and the horse was injured thereby, without any further act of the defendant, the finding should be for defendant.” In the printed argument, defendant’s counsel practically concedes that defendant was negligent in so placing the barb wire along the division fence, but insists that plaintiff ought not to recover because himself guilty of contributory negligence in that he saw the condition of the wire before the horse was injured, and yet allowed his stock to occupy the pasture. It was upon this theory that the above instruction was requested. ‘ The trial court properly refused said instruction. The facts therein stated did not, as matter of law, make a case of contributory negligence on the part of the plaintiff. He had the right to pasture his own stock on his own premises, and he could not be deprived thereof by the defendant’s violation of duty. Donovan v. Railroad, 89 Mo. 147; Green v. Coal Co., 53 Mo. App. 606; 1 Thompson on Neg., p. 531. Judgment affirmed. All concur.