Brownell v. Flagler

5 Hill & Den. 282

Opinion

By the Court, Bronson, J.

In an action on the case, where the injury of which the plaintiff complains has resulted from the negligence of both parties, without any intentional wrong on the part of the defendant, the action cannot be maintained. (Bush v. Brainard, 1 Cowen, 78; Blyth v. Topham, Cro. Jac. 158; Rathbun v. Payne, 19 Wend. 399, 401, and the cases there cited ; Hartfield v. Roper, 21 id. 615, 619).

(a) There may have been some slight degree of negligence on the part of the plaintiff in allowing his cow and lamb to escape into the highway; and if the lamb had been killed by a passing carriage, without any intentional fault in the driver, the plaintiff would have had to bear the loss. But the plaintiff is not suing for negligence. He complains of a voluntary injury. The defendant knowingly drove away the lamb, and left it in the yard with his own flock to be taken by the drover. If he could not separate this Iamb from the rest when it came into the flock, he could easily have done so when he got to Shearman’s; and the jury have found, as they well might, that he was in fault for not doing it.

It is of no consequence that the defendant has not been a gainer by the wrong. It is enough that he has done an injury to the plaintiff. The judgment of the O. P. must be reversed, and that of the justice affirmed.

Ordered accordingly.

For additional illustrations of the general doctrine, see Harlow v. Humiston, (6 Cowen, 189, 191;) Burckle v. The New-York Dry Dock Co., (2 Hall’s Rep. 151;) Hice v. Kugler, (6 Wharf. 336;) Smith v. Smith, (2 Pick. 621;) Lane v. Crombie, (12 id. 177;) Noyes v. Morris, (1 Verm. Rep. 353 ;) Washburn v. Tracy, (3 Chip. Rep. 128;) Marriott v. Stanley, (1 Mann. & Grang. 568;) Williams v. Holland. (10 Bing. 112; S. C. 6 Carr. & Payne, 23; 3 Moore & Scott, 540;) Flower v. Adam, (2 Taunt. 314;) Chaplin v. Hawes, (3 Carr. & Payne, 554;) Lack v. Seward, (4 id. 106;) Pluckwell v. Wilson, (5 id. 375;) Goodman v. Taylor, (id. 410;) Luxford v. Large, (id. 421;) Sills v. Brown, (9 id. 601;) Turley v. Thomas, (8 id. 103 ;) Woolf v. Beard, (id. 373 ;) Hawkins v. Cooper, (id. 473 ;) Wayde v. Carr, (2 Dowl. & Ryl. 255 ;) Clay v. Wood, (5 Esp. Rep. 44 ;) Vennall v. Garner, (1 Cromp. § Mees. 21;) Vanderplank v. Miller, (Mood. & Malk. 169 ;) Collinson v. Larkins, (3 Taunt. 1;) Hill v. Warren, (2 Stark. Rep 377;) Lynch, v. Nurdin, (2 Stephen’s Nisi Prius, 1016, Am. ed. of 1844.)