Sprague v. Fremont, E. & M. V. R. R.

6 Dakota 86

• Court: Supreme Court Of The Territory Of Dakota
• Decided: October 15, 1888
• Status: Published

Opinion

By the Court :

This case is affirmed, the court being of the opinion:

1. That the law relating to the running at large of cattle in Custer county and other Black Hills counties is not invalid by-reason of applying specially* to these counties, as such law comes within the police power of the legislature, being such a subject-matter as was proper for the legislature to act upon as they deemed best for the interest of such localities.

2. That the common law that requires the owner of domestic animals to keep them upon his own premises and makes them trespassers if he suffer them to run at large, is not in accordance with the common usage and necessities of the new and growing section of the Black Hills country and, therefore, it does not apply-

3. The plaintiff may have been somewhat negligent in allowing his animals to go at large and stray upon defendant’s track, and such negligence may have been only the remote cause of the injury to the plaintiff’s cattle, and the negligence of the defendant’s employees in running the train may have been the immediate cause of the plaintiff’s loss. There being sufficient evidence in the case upon the question of negligence, the lower court did right in submitting the case to the jury.

All concur.