Herrick v. Gary

Citations

• 65 Ill. 101

Syllabus

<p>1. Sheep Turning contagious disease—right of action. Under the act of Feb. 16, 1865, relating to diseased sheep, it is clear that the owner of sheep having a contagious disease, has no right to let them run even upon 'his own land where they can communicate disease to sheep lawfully pastured in an adjoining field. $</p> <p>2. Same—cormmmication of the disease indirectly. Where the defendant kept his sheep which were infected with the scab, in his own pasture, adjoining that of the plaintiff, the two pastures being separated by a division fence, and defendant’s sheep, through want of repair in his portion of the fence, escaped into the plaintiff’s pasture, where the plaintiff had a lot of sheep, part belonging to himself and part to his father, so that it was doubtful whether plaintiff’s or his father’s sheep were first infected: Held, that an instruction, if it was as likely the plaintiff’s sheep caught the disease elsewhere as from defendant’s sheep, the jury should find for defendant, was erroneoug, being highly calculated to mislead; and that if any of the flock were infected, and the disease thereby communicated to plaintiff’s sheep, the defendant was liable.</p> <p>3. Same—core required of plaintiff. Where a plaintiff’s sheep are infected from the sheep of the defendant, the former will not be held responsible for more than ordinary care and skill in their treatment; but even if they could have been cured by proper care and treatment, this will not exonerate the defendant from liability for the trouble and expense incurred by the plaintiff.</p> <p>4. Same—instruction as to negligence of plaintiff. Where the plaintiff had his sheep in his own pasture, and they were infected with disease from defendant’s sheep, kept by him in an adjoining pasture, from which they escaped through defects in defendant’s part of the division fence, and communicated with plaintiff’s sheep, the court instructed the j ury, for the defendant, that if the plaintiff’s negligence caused