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Brownell v. Flagler

5 Hill & Den. 282 Court N.Y. Sup. Ct. English

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p. 282
Brownell vs. Flagler.

Headnote

Where an injury has resulted from the negligence of both parties, without any intentional wrong on the part of either, an action on the case cannot be maintained. Per Bronson, J.
The plaintiff1 being the owner' of a lamb, allowed it to escape into the highway, where it mingled with a flock of sheep which the defendant was driving along; and he, knowing this fact, made no attempt to separate the lamb from the flock, but delivered the whole to a drover in pursuance of a sale previously made, by whom they were ’ taken off to market. Held, that these facts were sufficient to authorize a verdict in favor of the plaintiff for the value of the lamb, though it was not included in the sale to the drover, and the defendant received nothing on account of it.
Error to the Dutchess O. P. Brownell sued Flagler before a justice of the peace in an action on the case to recover the
p. 283
value of a cosset-lamb. The lamb ran with the plaintiff’s cow, and both were pastured in the field of one De Langs. The cow and lamb got into the highway on the 5th or 6th of November, 1841, and on that day the defendant, who lived within a mile, passed with a flock of about 20 lambs which he had sold to a drover by the name of Pure. The plaintiff’s lamb mingled with the flock, and the defendant drove them all on together, knowing that the strange lamb was in the flock, and left them in the yard of one Shearman for the drover, who came the next morning and took them all away to market. The defendant lmew that he left the strange lamb in the yard among the rest; but he received nothing for it from Pine, having been paid for his own lambs before he drove them to Shearman’s, where Pine was to come for them. The jury found a verdict for the plaintiff, and the justice rendered judgment in his favor. The defendant removed the cause to the C. P. by certiorari, where the judgment was reversed, on the ground that the plaintiff was chargeable with negligence for allowing His lamb to be in the highway. The plaintiff brought error.
S. Barculo, for the plaintiff in error.
O. T. Coffin, for the defendant in error.

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).[1] There

(a) (a) 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 *284 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.)

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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.

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