Rightmire v. Shepard — 36 N.Y. St. Rep. 768

Majority

p. 768

Nathan Rightmire, App’lt, v. James Shepard, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed February 20, 1891.)

Headnote

1. Trespass—Involuntary.

An escape of cattle upon plaintiff's lands while being driven along a highway by defendant, where the latter immediately pursued and drove them off as soon as possible, is an involuntary trespass, for which the defendant is not liable.

2. Same—Destruction op pence.

In an action for trespass, there was evidence that defendant said he tore down plaintiff’s fence, and that it looked as if it had been torn down. Defendant testified that he told plaintiff that the fence would have to be removed, and that he tore it down to repair the highway, and there was no evidence that plaintiff did.not consent thereto. Held, that such removal would not be presumed to he wrongful in order to reverse the judgment.

Appeal from a judgment of the county court of Tioga county, affirming a judgment entered in a justice’s court against the plaintiff for costs.

The action was to recover damages alleged to have been occasioned by the defendant’s cattle while trespassing upon the plaintiff’s land and for destroying the plaintiff’s fence.

Charles A. Clark, for app’lt; R. F. Bieber, for resp’t

The appeal book shows that the defendant testified that his cattle were not on the plaintiff’s premises at any time except when he was driving them along the highway which was on 'the side of the plaintiff’s lot Whether they were upon the plaintiff’s premises at other times was, therefore, a question of fact for the jury, and its determination of that question in defendant’s favor should not be disturbed.

The proof also discloses that while the defendant was driving his cattle along the highway they sometimes escaped to the plaint- • iff’s lot; that on those occasions he pursued and drove them off as soon as possible. Such an entiy upon the plaintiff’s premises was but an involuntary trespass, for which the defendant would not be liable. The Tonawanda R. R. Co. v. Munger, 5 Den., 255 ; Goodwyn v. Cheveley, 4 Hurl &Norm., 631; 2 Waterman on Trespass, § 872.

We do not think the judgment should be disturbed because the-jury did not allow the plaintiff damages for the removal of the defendant’s fence. The proof upon this question was very mea

p. 769

ger. One witness testified that the defendant said he tore it down. The plaintiff testified that the fence looked as if the defendant had hitched his team to it and torn it down, and that the damage to the fence was four or five dollars. The defendant testified that he told the plaintiff the fence would have to be removed, and that he tore it down to repair the highway. There is no evidence to show that the removal of this fence was wrongful nor that the plaintiff did not consent'to its removal. That it was wrongfully removed should not, we think, be presumed to enable us to reverse the judgment in this case. The presumption, if any, is that it was properly removed by the defendant to enable him to repair the highway, and after verdict a presumption that will uphold a judgment should obtain rather than one that would result in a reversal. Moreover, the evidence tended to show -that the fence was of little value, and we cannot say from it that the damages were more than .nominal, and a judgment should not be reversed where the damages are only nominal. Stephens v. Wider, 82 H. Y., 351.

We think the judgment should be affirmed.

Judgment affirmed, with costs.

Merwin, J., concurs.

Under some circumstances a judgment for nominal damages will be reversed. Countryman v. Lighthill, 24 Hun, 405 . This case does not fall within the exception, and, therefore, I concur in the foregoing opinion.