Louisville N. R. Co. v. Harrison , 16 Ala. App. 609 ( 1918 )

"Negligence," to give a cause of action, must be the doing of an act, or the omission of an act, which results in damage, but without the intent to do wrong or damage. Williamson Iron Wks. v. McQueen, 144 Ala. 265, 40 So. 306. The claim for damages in this case is based upon negligence in conjunction with the familiar maxim, "Sic utere tuo ut alienum non lædas," and the liability of the defendant is to be found in action or nonaction accompanied by knowledge, actual or implied, of the probable result of his conduct. Clardy v. Hudspeth,89 Ark. 189, 115 S.W. 1134, 21 L.R.A. (N.S.) 702. According to the allegations of the complaint, the injury complained of was in Shelby county, where the general law of the state prevails with reference to stock running at large, and therefore, as was said in Hurd v. Lacy:

"A person's right to the use of his land is, in a measure, affected by the recognized right of others to allow their stock to run at large." Hurd v. Lacy, 93 Ala. 429, 9 So. 379, 30 Am. St. Rep. 61.

If therefore the defendant erected or maintained a fence, on its premises, in so negligent a manner as to be in effect a trap to passing animals, and plaintiff's colts were injured as the natural or probable consequence of such act, and the injury was such as a prudent man must have foreseen, then the defendant would be liable. Hurd v. Lacy, supra; Sisk v. Crump,112 Ind. 504, 14 N.E. 381, 2 Am. St. Rep. 213.

The question of liability in the instant case is based on negligence, which is determined by the question whether or not a person exercising reasonable care and prudence would apprehend injury to animals by reason of the character of pocket or area described in the complaint. Hurd v. Lacy, supra; St. Louis, I. M. S. R. Co. v. Newman, 94 Ark. 458,127 S.W. 735, 28 L.R.A. (N.S.) 83, 140 Am. St. Rep. 134; Haughey v. Hart, 62 Iowa, 96, 17 N.W. 189, 49 Am. Rep. 138.

In passing upon these questions, it must be remembered that it is the duty of the landowner to take notice of the natural propensity of domestic animals, and to exercise reasonable care to prevent his fence from becoming dangerous, and, if it is constructed and maintained in such manner as to constitute negligence, he is properly held liable. And when a fence is so constructed and maintained as to constitute a dangerous trap, into which domestic animals in search of food, or, following their natural instincts as to general directions in returning home, are liable to wander, this would constitute actionable negligence, provided, of course, there was the requisite scienter, and injury. Auxford Brown Ore Co. v. Hudson,77 So. 243¹; Winkler v. Carolina N.W. R. Co.,126 N.C. 370, 35 S.E. 621, 78 Am. St. Rep. 663. When considered in line with the foregoing, it will be seen that count K was not subject to the demurrer.

There was evidence tending to sustain the allegations of the complaint, and hence the court did not err in refusing to give the affirmative charge as requested by the defendant.

In line with the views expressed in the foregoing opinion, the court did not err in refusing to give at the request of the defendant charges numbered 4, 5, 7, 8, 13, and F. It was not necessary to prove that the colts were induced to go on the area solely in search of grass or food; but, as was correctly stated in the oral charge of the court, if they "were induced to go there for grass or other vegetation, or by any desire to go home or going home that way," from a point near the mouth of the trap where they had been grazing, and the other allegations of the complaint were proven, then the defendant would be liable.

Charge 10 does not assert a correct proposition of law as applied to the facts in this case. It is not that stock were in the habit of passing over this area in going to and returning home from the pasture lands, but was the trap between the pasture lands and the home of the stock and so maintained that, considering the natural propensity of stock, they would be liable to be caught in the trap and injured, either in wandering about in search of food, or in attempting to go home, when their instincts told them it was the time to go.

We find no error in the record, and the judgment is affirmed.

Affirmed.

¹ Ante, p. 245.