Kellar v. Shippee

Mr. Justice Cartwright. This was a suit commenced by Orrin Shippee, defendant in error, against James G. Kellar, plaintiff in error, before a justice of the peace, to recover damages sustained by the falling of a colt into a ditch dug by Kellar, whereby the colt was killed. There was a recovery in justice’s court, and on appeal by Kellar to the Circuit Court, there was a trial, resulting in a verdict for §100, on which judgment was entered. On the trial the following facts were proven: James G. Kellar, being desirous of draining a pond on Ms land, dug a ditch for that purpose, varying in depth from about three feet to fourteen feet, and laid tile in the ditch, which was afterward filled above the tile. The ditch was dug diagonally across a corner of the inclosure of E. F. Thompson, about three rods from the corner of the tract. It was ten or eleven feet deep on Thompson’s land, and about two and a half feet wide at the top and one foot at the bottom. The ditch was left open and unprotected for a week or more. The colt in question was running in Thompson’s inclosure during this time, and this fact was known to Kellar. After the ditch had been open for the length of time stated, the colt accidentally fell in it, and was killed. The colt was owned by Shippee, and was in the possession of Thompson to use for its keeping without other compensation. At the close of plaintiff’s evidence, a motion was made by Kellar to dismiss the suit for the reasons following: First, that plaintiff’s evidence was insufficient to sustain any finding; and second, that the justice of the peace and the Circuit Court on appeal had ,no jurisdiction. These reasons were inconsistent, inasmuch as the first invoked the judgment of the' court on the evidence, which would be an act of jurisdiction, and the second denied the right to exercise jurisdiction. The court reserved the decision of the motion until all the evidence was in, and then overruled it. This was correct. The evidence was sufficient, and if it was not, the court would have no power to dismiss the suit for that reason. The justice, having jurisdiction in actions for damages for injuring personal property in any appropriate form of action, had jurisdiction in this case, although the injury was consequential. Gallery v. Davis, 39 Ill. App. 619; Northrup v. Smothers, 39 Ill. App. 588. Plaintiff in error complains also of some rulings on the admission of evidence. He produced a surveyor, who said that he made a survey a month or six weeks before the trial and about three years after the colt was killed, and plaintiff in error proposed to prove that survey, but was not allowed to do so. It is said that the object was to prove that Kellar owmed the land where the ditch was dug, and that the true line would inclose it. Bo competent evidence of title to any land was offered by plaintiff in error, and there is nothing in the record to indicate that he had any to offer. The evidence offered did not tend to prove title, and it is not necessary to say whether the court could have heard a defense founded on title to the land where the ditch was dug. Besides, the evidence shows that the ditch was not dug under, any claim of ownerslnp. It was done about three years before the survey, and plaintiff in error testified that when about to dig the ditch, it was necessary to dig it across this corner of Thompson’s land, and he went over to see Thompson to get permission to do so, but did not see him. and obtained permission from Ms son. Moreover, plaintiff in error would not be relieved from liability under the evidence in this case if he owned the land. His negligence Avould be just as culpable in either event, and he would not be relieATed from the duty of exercising ordinary care and prudence to protect the colt from the dangerous excavation made in an inclosure where the colt was lawfully running, with his knowledge, merely because the division fence was not on the true line. Plaintiff in error also offered evidence to show his object in digging the ditch and leaving, it open. Only compensatory damages were sought and awarded, and the evidence as to Ms motives was immaterial. It is also objected that the defendant in error was allowed to prove that other stock got into the ditch on Ilellar’s land. The record shows that the evidence complained of was stricken out by the court. Much complaint is made concerning the action of the court in regard to instructions. Industry, wholly disproportioned to the number of legal questions involved in the case, was shown in the preparation of instructions on the part of plaintiff in error, twenty such instructions being presented to the court. The supply so far exceeded the requirements of the case as to tend to confuse and embarrass the court, and it is perhaps not strange that some of the instructions given Avere inconsistent with each other, and that some Avould be subject to just criticism. The first and fourth instructions given for defendant in error, which based liability alone on a trespass on lands, were inconsistent Avith the second instruction given for plaintiff in error, which stated that his liability, if it existed at all, must be based on negligence on Ms part. But if those given can not all be approved, the judgment Avill not be reversed, if it is clear that a correct conclusion was reached. It is especially urged that the third instruction given for defend-' ant in error was wrong. It informed the jury that defendant in error could maintain the action, and it is claimed that he could not, because the colt was in the possession of Thompson as bailee, and it is contended that the right of action was in Thompson alone. The court ivas right. The killing of the colt was an injury to the property of defendant in error and his right to future possession, and he could maintain the action. Dicey on Parties to Actions, 315. The court gave five of the instructions asked by plaintiff in error, and refused fifteen. It is urged that the court erred it refusing to give these instructions, but they were all bad and were properly refused. To point out the errors and defects in all of them would require too much time and space, and we will only mention the least objectionable of them. The sixth stated that if the colt lost its life accidentally, plaintiff in error would not' be liable. In one sense it lost its life accidentally, but the instruction ivas bad, without defining an accident so that the jury might understand that it meant an event causing damage, happening unexpectedly and Avithout fault. If there Avas any fault, there Avas liability, although there might be an element of accident in the sense of being unexpected, so that the death might be termed accidental. The instruction Avould have been misleading. City of Chicago v. Sheehan, 113 Ill. 658. The seventh singled out one act of plaintiff in error Avhich combined AAdth others to create a liability, and stated that the act alone would not render him hable. Each separate-act could be in like manner separated from the others, and a like conclusion declared. Instructions should be so given as to afford some guide to the jury in deciding the case in hand. The eighth stated that if Thompson Avas bailee of the colt, and knew that the ditch Avas dug and did not protect the colt against it, then Thompson, and not Kellar was hable. Kellar was not relieved of liability by the negligence of Thompson, even if the court had a right to say AArhat Avould be negligence in Thompson. The ninth Avas inconsistent Avith itself and asserted in substance that Kellar was not liable if he dug the ditch Avith the acquiescence of Thompson, unless it was against Thompson’s consent. Ho proposition of law contained in it Avas correct. The eighteenth related to an alleged conversation of Kellar with Thompson A\diich, it was claimed, Avould constitute a license by Thompson to let the ditch remain open. The language recited in the instruction could not be construed into a license to leave the ditch open, as it was left for a considerable time. The foregoing are the only refused instructions requiring' attention. While, as before stated, the instructions given were not wholly free from objection, the defects were not of much importance in the case, and the evidence showed a clear right of recovery on account of the negligence of plaintiff in error. Ho other verdict could have been returned by the jury without a violation of their . duty, and being satisfied that justice has been done the judgment will be affirmed. Judgment affirmed.