FROM COOS CIRCUIT COURT. *Page 607 The usual form of action, to recover damages for injuries done to land by the defendant's cattle, is trespass; and the ordinary form of declaration is, that the defendant by his cattle broke and entered the plaintiff's close, depastured the same, and trod down the herbage, c. If the defendant, by his neglect, suffer his cattle to be on his neighbor's soil, he is treated by the law as an active trespasser. 3 Bl. Com. 211. "A man is answerable for not only his own trespass, but that of his cattle also; for if by his negligent keeping they stray upon the land of another (and much more if he permits or drives them on), and they there tread down his neighbor's herbage and spoil his corn or his trees, this is a trespass for which the owner must answer in damages." Tewksbury v. Bucklin, 7 N.H. 518; Noyes v. Colby, 30 N.H. 143. This being so, if in this case the cow was unlawfully on the defendant's land, and the defendant's dog, of his own mere motion and without any action of the defendant, injured her, I should think that the exception in the statute would apply, and it would be held that the plaintiff received the injury "while engaged in the commission of a trespass."
This, however, is not such a case. Here the defendant was an actor and he might justly be said to have done the injury by means of his dog; so that the question arises, whether the act done was done in the reasonable and necessary defence of his property.
The case finds that the defendant set his dog on to the plaintiff's cow, and that thereby the cow, in escaping from the dog, was so injured that she had to be killed. She was not injured by the dog, but by the fall occasioned by her attempt to jump the fence in escaping from him. Was the dog the proximate cause of the injury? This would depend upon the question whether the attempt of the cow to get over the fence, and the fall and consequent injury, were consequences which a reasonably careful and prudent man ought to have expected to ensue from such use of his dog. It was a question of fact for the jury, and the jury has found that the dog was the proximate cause of the injury. The dog having been the proximate cause, was it reasonably necessary that the defendant, in protecting his property, should use the dog as he did? I cannot see that it makes any difference whether the cow was in the defendant's lot through his or the plaintiff's fault. In either case, the defendant must drive her out in a reasonable and proper manner.
I have noticed nothing in the case or in the charge of the judge *Page 609 which looks to two counts, but in the opening of the charge I find the following words: "The plaintiff says that he was the owner of a certain heifer or cow; that the defendant was in the possession or the owner of a certain dog, and that the defendant, by means of his dog, caused an injury to his (the plaintiff's) heifer, whereby she was totally destroyed; that he lost the whole value of the heifer; that she was injured to such an extent that he was obliged to kill her."
It is apparent from this that the claim was, as stated by the court, that the defendant caused the death of the heifer, using the dog for that purpose as he might have used an axe or a gun. The case finds that the evidence tended to show that the defendant set the dog on the heifer, and the inference is strong that the dog would not have meddled with the cow if it had not been for the action of the defendant; and it is evident that on this state of facts it was quite immaterial, whether he owned or possessed the dog or not. It was enough that, the dog being in the vicinity, he was able to induce him to attack the cow, and in such circumstances the statute was quite immaterial. The question was, whether, the heifer being on the defendant's land and damaging his property, the defendant's action was justifiable in its necessary defence.
I do not think the statute was at all intended to apply to such case. As the law was before the statute, if a dog, of his own motion, without the intervention of human volition, did damage, it was necessary to allege and prove that he was dangerous, and that the person responsible as owner knew it. This necessity often occasioned great embarrassment, and deprived the party of a remedy which he ought to have had. I suppose the object of the statute was to remedy this inconvenience, and to enable parties to recover for injury done to their property by dogs, without the necessity of making such allegation and proof.
But I apprehend that in a case like this the common law would always have given the injured party his remedy, without any reference to the ownership or keeping of the dog, provided the defendant made such unlawful use of him. Such being the state of the law and of the facts, and the allegation as described in the charge, it was clearly wrong to instruct the jury that if the heifer was trespassing, the defendant was not liable.
In Wright v. Boynton, 37 N.H. 9, and Hooksett v. Amoskeag Co.,44 N.H. 105, it was held that where the charge was correct in law, but not so specific as would have been proper, the verdict would not have been set aside unless the specific instructions were requested. But here was a charge which, in its application of the facts stated in the case, seems to have been entirely wrong; and I have met with no case which makes it necessary for the party under such circumstances to request specific instructions.
Under all the circumstances, I cannot think that this verdict ought to stand.