Williams v. Mudgett , 2 Posey 254 ( 1880 )

Opinion.— Held, that if defendant had placed a proper fence there, one which was not dangerous and which could be readily seen by men and animals in passing, such charge would have been correct, but in view of the fact that the fence consisted of two wires stretched on posts twenty feet apart, that it was not a legal fence, and therefore the charge was erroneous. There is no doubt that defendant had the right to fence his land outside of the limits of the public road as it had been laid out; but as he had formerly allowed people to pass there, it was his duty, when he withdrew the privilege, to do so in a way not to endanger other people. One must use his own property so as not to hurt or endanger others, at least when he has allowed them certain privileges on that property. See Wharton, sec. 349. Our law regards a fence composed entirely of posts and barbed wire as a dangerous fence. See Acts 1879, ch. 101, Appendix to B. S., p. 12.

We do not think the court erred in admitting evidence which tends to show that plaintiff and companions were drunk. But it should be remembered that intoxication does not deprive a party of the protection secured by the law to sober people. The plaintiff therefore forfeited no right by being drunk, if he were actually so, but his being drunk does not release him' from the duty of being cautious and careful just as other people. Field on Dam., sec. 198.

¡Reversed and remanded.