Barnes v. Chapin

86 Mass. 444

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1862
• Status: Published

Opinion

Chapman, J.

The general doctrine of the common law as to injuries done by domestic animals seems to be, that the owner is not liable unless he has been in some fault. He is liable for their trespasses when it was his duty to confine them, and he has neglected to do so. In Leame v. Bray, 3 East, 595, Lord Ellenborough says, “ If I put in motion a dangerous thing, as if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue to any person, I am answerable in trespass.”

In this case, the verdict of the jury, under the instructions of the court, finds that the plaintiff was using ordinary and reasonable care in travelling on the highway. The facts reported furnish no reason to doubt the correctness of the verdict on this point. The suggestion of the defendant’s counsel that reasonable care required the plaintiff to confine by a halter a colt three weeks old, while it was travelling by the side of its dam, the plaintiff being present and leading the dam by a halter, might be properly addressed to the consideration of the jury, but does not come within the scope of judicial determination.

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 ol 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. Exceptions overruled