Cristiana v. Sievers ( 1930 )

WESTERFIELD, J.

The plaintiff, Ignazio Cristiana, owned and operated a truck farm adjacent to a dairy operated by the defendant, James J. Sievers. Some of the cows belonging to defendant gained entrance to the .truck farm of plaintiff and damaged his crops to an extent which he claims amounted to $500, and which the trial court recognized to the extent of $300, awarding him a judgment for that amount.

Liability is denied on the ground that the defendant’s place of business was properly fenced, and that the fences were strong enough to confine the cows to defendant’s premises, and would have done so but for the fact that the wire of which the fences were constructed had been cut. Pieces of the wire taken from the opening in the fence were exhibited as evidence below, and several persons, apparently expert in that regard, testified that the wire had been cut and not broken, with the result that an admission was finally made to that effect, though there is no testimony as to who did the cutting.

The question before us, therefore, is whether the owner of a dairy is liable for the damage to his neighbor’s crops due to the entry of his cows on his neighbor's premises through an opening in a fence which had been cut. It was a comparatively new fence, and the evidence satisfies us that it' was of sufficient strength to have prevented the cows from going through it, or trampling it down, but whether new and strong, or old and weak, is immaterial, because the cows did not break through. There is no pretense that defendant was aware of the cut in the fence until after the entry of the cows and the damage to plaintiff’s crops. The plaintiff relies upon articles 2316, 2317 and 2321 of the Civil Code. These articles read:

“2316. Every person is responsible for the damage he occasions not merely by his act, but by his. negligence, his imprudence, or his want of skill.

“2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications. * * *

“2321. The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.’’

We are also referred to the cases of McGuire v. Ringrose, 41 La. 1029, 6 So. 895, and Williams v. Windham, 3 La. App. 127.

The authorities relied on are not in point, for it does not appear that the defendant, or any person for whom he was answerable, was guilty of any negligence. It was not to be expected, nor could the defendant foresee, that some une would cut his fence. He, therefore, cannot be charged with negligence for failure to maintain a sufficient guard oyer the fence to prevent depredation or vandalism. Gilliam v. Texas C. & R. Co., 114 La. 272, 38 So. 166; Frank Rouseo v. Gauche-Connor Co. et al., 8 Orl. App. 216. In the last cited case it was said:

“Ordinary care requires only that precautions ‘be taken against occurrences that can and should be foreseen; but does not require that one should anticipate unusual and improbable, though entirely possible,, occurrences.” See, also, 17 C. J. Verbo “Damages,” sec. 82, p. 751.

Our conclusion is that the defendant is not liable, and the judgment appealed from must be, and it is hereby, reversed, and it is now ordered that there be.' judgment in favor of the defendant, James J. Sievers, and against the plaintiff, Ignazio Cristiana, dismissing plaintiff’s suit at his cost.