It appeared that on the 15th of May, 1882, an ox of the defendant was being driven from the live-stock market in Broad Street, Stamford, along a public street called Ironmonger Street, to the defendant’s premises. Ironmonger Street has a paved carriage road with a foot pavement on either side, and the plaintiff was the occupier of an ironmonger’s shop in the street. The ox, after having gone for some distance down the paved carriage road of Ironmonger Street, driven by the defendant’s men, went for a short distance upon the foot pavement on the near or left-hand side, and was driven therefrom by one of the drovers in charge on to the carriage road, and after continuing for a farther distance upon such carriage road, turned again on the pavement about twelve yards from the plaintiff’s shop, and continued upon the pavement until it came opposite the plaintiff’s shop, when it passed through the open doorway into the shop and did damage to goods therein to the amount claimed. The ox was, as soon as possible after such entry and damage, driven by the defendant’s men from the shop to the carriage road and to defendant’s premises in another street; but they did not succeed in getting it out until about three-quarters of an hour from the time when it entered. No special act of negligence was proved on the part of the persons in charge of the ox, and there was no evidence that it was of a vicious or unruly nature, or that the defendant had any notice that there was anything exceptional in its temper or character, or that it would be unsafe to drive it through the public streets in the ordinary and usual way. It was proved that at the time the ox left the carriage-way the second time, one of the two men of the defendant in charge of the animal was walking by its side, having his hand upon it, and that the other man was walking about three yards in the rear of it. The two men in charge proved that they drove it unaccompanied by other cattle from the market, and they both declared that they did all they could under the circumstances to prevent it going on to the foot pavement and entering the open doorway of the plaintiff’s shop, and they stated that the movement of the ox from the carriage-way on to the foot pavement was sudden and could not by any reasonable or available means have been prevented. It was alleged by the defendant’s witnesses, and not contradicted, that it was a usual thing for several oxen to be driven from the Stamford market in charge of two men, and sometimes one man. It was admitted that it was not customary to drive oxen with halters, and that they would probably not go quietly if led by halters.
The County Court judge gave a verdict for the amount claimed, giving the defendant leave to appeal.
The question for the opinion of the Court was, whether upon the facts the plaintiff was entitled to the verdict.[[254]]
Lord Coleridge, C. J. In this action the County Court judge has found as a fact that there was no negligence on the part of the drivers of the ox, or, at all events, he has not found that there was negligence, and as it lies on the plaintiff to make out his case, the charge of negligence, so far as it has any bearing on the matter, must be taken to have failed.
Now, it is clear as a general rule that the owner of cattle and sheep is bound to keep them from trespassing on his neighbor’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. It is also tolerably clear that where both parties are upon the highway, where each of them has a right to be, and one of them is injured by the trespass of an animal belonging to the other, he must, in order to maintain his action, show that the trespass was owing to the negligence of the other or of his servant. It is also clear that where a man is injured by a fierce or vicious animal belonging to another, that prima facie no action can be brought without proof that the owner of the animal knew of its mischievous tendencies.
In the present case the trespass, if there was any, was committed off the highway upon the plaintiff’s close, which immediately adjoined the highway, by an animal belonging to the defendant which was being driven on the highway. No negligence is proved, and it would seem to follow from the law that I have previously stated that the defendant is not responsible. We find it established as an exception upon the general law of trespass, that where cattle trespass upon unfenced land immediately adjoining a highway the owner of the land must bear the loss. This is shown by the judgment of Bramwell, B., in Goodwyn v. Cheveley, 28 L. J. (Ex.) 298. That learned judge goes into the question whether a reasonable time had or had not elapsed for the removal of cattle who had trespassed under similar circumstances, and this question would not have arisen if a mere momentary trespass had been by itself actionable. There is also the statement of Blackburn, J., in Fletcher v. Rylands, L. R. 1 Ex. 265, that persons who have property adjacent to a highway may be taken to hold it subject to the risk of injury from inevitable risk. I could not, therefore, if I were disposed, question law laid down by such eminent authorities, but I quite concur in their view, and I see no distinction for this purpose between a field in the country and a street in a market town. The accident to the plaintiff was one of the necessary and inevitable risks which arise from driving cattle in the streets in or out of town. No cause of action is shown, and the judgment of the County Court judge must be reversed.
Stephen, J. I am of the same opinion. As I understand the law, when a man has placed his cattle in a field it is his duty to keep them from trespassing on the land of his neighbors, but while he is driving them upon a highway he is not responsible, without proof of negligence on his part, for any injury they may do upon the highway, for they cannot then be said to be trespassing. The case of Goodwyn v. Cheveley, supra, seems to me to establish a further exception, that the owner of the cattle is not responsible without negligence when the injury is done to property adjoining the highway,—an exception which is absolutely necessary for the conduct of the common affairs of life. We have been invited to limit this exception to the case of high roads adjoining fields in the country, but I am very unwilling to multiply exceptions, and I can see no solid distinction between the case of an animal straying into a field which is unfenced or into an open shop in a town. I think the rule to be gathered from Goodwyn v. Cheveley, supra, a very reasonable one, for otherwise I cannot see how we could limit the liability of the owner of the cattle for any sort of injury which could be traced to them.
Judgment for defendant.[[255]]
COOLEY ON TORTS, 2d ed., 398–400.
The statutes which, under some circumstances, or for some purposes, require lands to be fenced by their owners, are so various in the several States that it is not easy even to classify them. Some of them provide merely that unless the owner shall cause his lands to be fenced with such a fence as is particularly described, he shall maintain no action for the trespasses of beasts upon them. These statutes are generally limited in their force to exterior fences, and are intended as a part of a system under which cattle are or may be allowed to depasture the highway. In some States, from the earliest days, beasts have been allowed to roam at large in the highways and unenclosed lands, either by general law or on a vote of the township or county to that effect; a futile permission, if owners of lands are not required to fence against them. A more common provision is one requiring the owners of adjoining premises to keep up, respectively, one-half the partition fence between them, this being apportioned for the purpose by agreement, by prescription, or by the order of fence-viewers. A neglect of duty under these statutes would not only preclude the party in fault from maintaining suit for injuries suffered by himself in consequence thereof, but it would seem that if the domestic animals of his neighbor should wander upon his lands, invited by his own neglect, and should there fall into pits, or otherwise receive injury, he would be responsible for this injury, as one occurring proximately from his own default. The statutes which require the construction of partition fences do so for the benefit exclusively of the adjoining proprietors. These proprietors may, at their option, by agreement, dispense with them, and even if they do not agree to do so, but fail to maintain them as the law contemplates, still, if the cattle of the third persons come wrongfully upon one man’s lands, and from there enter the adjoining enclosure, it is no answer to an action of trespass brought by the owner of the latter that the partition fence provided for by the law was not maintained.[[256]]