as the trespass consisted in removing a few rods of fence, the proper measure of damage was the costs of repairing it, and not the loss of a subsequent year's crop, arising from the want of such fence. I do not mean to say, that other damages may not be given for injury in breaking the plaintiff's close, but I mean only to say, that in the actual circumstances of this case, the cost of replacing the fence, and not the loss of an ensuing year's crop, is to be taken as the rule of damages, for that part of the injury which consisted in removing the fence and leaving the close exposed. Judgment on the default, for the sum of $1.50 damages. 674. GILBERT v. KENNEDY SUPREME COURT OF MICHIGAN. 1871 ERROR to Lenawee circuit. 22 Mich. 117 This was an action of trespass, quare clausum fregit, brought by Asa A. Kennedy in the Circuit Court for the county of Lenawee, against Warren Gilbert. The alleged trespass consisted in turning thirty-two head of cattle of the defendant's upon premises known as the Pitcher farm, and in the occupance of Kennedy. . . . [Verdict and judgment for the plaintiff, with damages of $875.] Kennedy, the plaintiff below, who was a farmer and drover engaged in the business of buying, selling, and grazing cattle for market, had a lease of a farm known as the Pitcher farm, which he had hired for the year 1868, for the purpose of grazing cattle intended for sale, relying mainly upon their growth and increase in the mean time for the increase in their market value. He had bought cattle during the winter and early spring, in reliance upon the use of this farm for their pasturage; and on the 30th of April, 1868, which was about the usual time for turning out such cattle to pasture, he drove sixty head of the cattle to the farm (which was several miles from his residence), and turned them in; but found ten head of defendant's cattle had been turned in by the defendant two days before, which were still there. Upon inquiry of the defendant why he had done this, the latter claimed to have entered into an agreement with the plaintiff giving him the right to pasture thirty-five head of cattle there for the season, and insisted upon his right and declared his intentions of doing so. . . . Plaintiff, having gone home and taken counsel, returned the next day and found that the defendant had removed some of the interior fences and used them to repair the outside fences, and that the ten head of cattle were still on the farm. Plaintiff turned them out. But when he went to the farm two days after found that defendant had turned them in again. He again turned them out, and the defendant again turned them in, and on the 4th of May turned in twenty-two head more, making thirty-two head, which continued there with the sixty head of the plaintiff's cattle (while the latter remained there), and were kept there during the summer. Plaintiff, finding it useless longer to turn them off, and that his only remedy was to bring an action, commenced the present action of trespass on the 24th day of June, 1868. The evidence strongly tended to show (though there was evidence on the part of the defendant to the contrary) that though the pasture on the farm was sufficient for the sixty head of plaintiff's cattle, and if they could have had the whole feed that they would have gained largely in weight up to the 24th of June; yet that with the addition of the thirty-two head of defendant's cattle, the pasture was overstocked and the feed so eaten up and destroyed that the plaintiff's cattle actually lost largely, instead of gaining in weight, while he continued to keep them there, and that they were also worth, in consequence, less per pound than they otherwise would have been. C. A. Stacy and Andrew Howell, for plaintiff in error. A. L. Millard and Eldredge & Walker, for defendant in error. It is urged that a party against whom a trespass is committed has no right, by his own action or by neglecting the obvious and ordinary means of preventing or lessening the damages, to make them more than they otherwise would have been. This, as a general principle, is true.. The plaintiff in error [defendant], adopting the general rule alluded to, makes it his premises for the conclusion that such was the duty of the plaintiff; and that the plaintiff, not having removed his cattle when the defendant's were turned in, or as soon as he was aware of the injury therefrom to his own, cannot recover of the defendant more than pasturage was worth; because, still basing his argument upon this assumed duty (for it has no other basis), the plaintiff should at once have obtained the necessary pasture for his cattle elsewhere; and that, therefore, the only proper rule of damages in the case is what such pasture would have been worth. Is this reasoning sound as applied to the facts of this case? As between the plaintiff and the defendant, did any such duty rest upon the former? The rule in question (if based upon the supposed duty) is simply one of good faith and fair dealing. If a man tortiously injures the roof of my dwelling, and I obstinately leave it in that condition, and, having the opportunity, refuse or neglect to repair, until the furniture and bedding in the house are injured or destroyed by the rains, I cannot recover of him for this injury to my furniture and bedding which I might have avoided by timely repairs. And if a man come to my field, where my cattle are grazing, turn them out into the street, and turn his own cattle in, thus ousting me from the possession and claiming and holding exclusive possession against me, I cannot leave my cattle in the street to starve, and then charge him with their full value, if it be practicable, by reasonable effort on my part, to procure other pasture or feed for them; but I can recover only such damages as I have suffered beyond what I might have avoided by reasonable diligence. But if he come to the same field and wrongfully turn his cattle in with mine, neither taking nor claiming any exclusive possession, and, as often as I turn his cattle out, he persists in turning them in again; till I find it impracticable to keep them out without coming to blows, and cease to attempt it, and my cattle from this cause are deprived of necessary feed, and I resort to a suit as my only remedy, which is substantially the present case, at what particular point in this series of tortious conduct does good faith to him require me to turn my own cattle from my own field and find pasture for them elsewhere, to save him from liability for their further injury from his repeated or continuous wrongs? Have I not a better right to insist that he shall, and to presume that he will, relent and cease the continuance of his tortious acts, than he has to claim that I shall remove my cattle from my own field and leave it to him? Is it not rather his duty to cease the continuance of his wrongs, than mine to give up my acknowledged right? The damages in such a case are in no proper sense increased by any act or negligence of mine, but by the continuance of his own tortious conduct. As to the question of duty, as well might it be said if he had repeatedly assaulted and beaten me and my family in my own house, and declared his intention of repeating the process as long as we should remain there, it would be my duty to remove myself and family from the house to avoid increasing the damages which might otherwise accrue from his future continuance or repetition of the like conduct. There was no duty resting upon the plaintiff at any time to remove his cattle and procure pasture for them elsewhere, if this could have been done... The judgment must be reversed [on other points of law, however], with costs of this Court, and a new trial awarded. The other justices concurred. 675. WILSON v. CHARLESTOWN SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1864 8 All. 137 TORT to recover for a personal injury sustained by the female plaintiff, in consequence of a defective highway. At the trial in the Superior Court, upon an agreement of the parties as to the facts established by the evidence, which are sufficiently stated in the opinion, Lord, J., ruled that the plaintiffs were not entitled to recover; and a verdict was returned for the defendants. J. F. Pickering, for the plaintiffs. J. Q. A. Griffin (C. Robinson, Jr., with him), for the defendants. CHAPMAN, J. It is well settled that the burden was on the plaintiffs to prove that Mrs. Wilson used ordinary care. The report of the case states that the sidewalk was covered with ice so as to be very slippery and dangerous; that she had passed over it just before in company with a friend, and they both remarked upon its dangerous condition. It thus appears that it was dangerous, and that she knew it to be so. In returning from the house to which she went, it is stated that she attempted to pass to Union Street over the slippery sidewalk, and when she had proceeded about half way to Union Street, she slipped and fell, receiving the injury for which the action is brought. But in all this there is nothing that affirms or indicates the exercise of care. There was no evidence to submit to the jury on that point. The fact that the street in front of the sidewalk, and the sidewalk on the opposite side of the street, were in such condition that they could have been used safely and conveniently, which was shown, tended to prove a want of care on the part of the female plaintiff. It is settled that if a person knows a way to be dangerous when he enters upon it, he cannot, in the exercise of ordinary prudence, proceed and take his chance, and, if he shall actually sustain damage, look to the town for indemnity. Horton v. Ipswich, 12 Cush. 488. The case therefore presents not only an entire absence of evidence tending to prove care, but strong evidence of carelessness. The defendants were legally entitled to the verdict which was taken in their favor. Todd v. Old Colony & Fall River Railroad, 3 Allen, 21; Denny v. Williams, 5 Allen, 1. Exceptions overruled. 676. POMEROY v. WESTFIELD SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1891 154 Mass. 462, 28 N. E. 899 Two actions of tort, for personal injuries occasioned to the plaintiffs respectively by an alleged defect in a highway which the defendant town was bound to keep in repair. The cases were tried together in the Superior Court, before MASON, C. J., who allowed a bill of exceptions, in substance as follows. There was evidence that the highway in question was a much travelled way leading from Westfield in a westerly direction to Granville along this way. .. That the portion of the road where the defect was alleged to exist was lined with trees on either side, and when the plaintiffs approached it at about nine o'clock it was very dark; that at the point in question was a covered stone culvert extending entirely across the way, and a short distance to the east of it a rock cropped out within the way projecting about the surface from three to six inches. . . . That just before the plaintiffs reached the projecting rock, the plaintiff Phelon, knowing that he was coming to a dangerous place and that the horse was accustomed to the road and knew more about going in the dark than he did, allowed his horse in the darkness to go unguided around the mud-holes and past the culvert; and that the horse walked past the first mud-hole of the culvert and for ten or twelve feet beyond it, and then started to trot, when the wagon was in a moment tipped over, and the plaintiffs were thrown out, the plaintiff Pomeroy striking upon a rock about six feet from the travelled part of the way nearly opposite the westerly mud-hole, and both were injured. The defendant requested the judge to rule that there was no evidence to warrant a finding that there was a defect, or that the plaintiffs or either of them were in the exercise of due care; but the judge declined so to rule, and submitted the cases to the jury. The jury returned a verdict for the plaintiff in each case; and the defendant alleged exceptions. H. W. Ely, (A. S. Kneil with him,) for the defendant. M. B. Whitney, for the plaintiffs. HOLMES, J. These are actions for personal injuries alleged to have been caused by a defect in a highway. . . . The question is whether the judge should have directed a verdict for the defendant, on the ground . . . that there was no evidence of due care on the part of the plaintiffs. The strongest argument for the defendant would be, that, although there is evidence of a defect, and although the conduct of the plaintiffs at the instant was prudent, yet they, or at least the plaintiff Phelon, the driver, had taken the risk upon themselves at an earlier moment by electing to travel upon the road, inasmuch as Phelon was well acquainted with the road and understood its dangers. Miner v. Connecticut River Railroad, 153 Mass. 398. Perhaps this argument might be met by saying that it was a question for the jury in this case whether Phelon did understand the dangers fully. But, further, in determining the right of a plaintiff to recover, there are two elements to be considered; first, how far he is chargeable with knowledge of the danger which he incurred, and then under what exigency he acted. That is to say, the exigency legitimately may affect not only the question how far he appreciated or ought to have appreciated the danger, but also how far he could run a risk known to be greater than prudently could be incurred under ordinary circumstances without losing his right to recover in case he was hurt. Especially is this true in cases like the present, where the parties are not in an equal position. The plaintiffs were away from home, and had to get back. They depended on the defendant for safety in doing so, and it was the defendant's power and duty to keep the way free from defects. In such a case, even if it were found that the plaintiffs knew that they were |