
    Eaton vs. Winnie.
    If a party’s own wrongful act has brought another into peril, he is not at liberty to impute the consequences of his acts to a want of vigilance in the injured party, when his owu conduct and untruthful assertions hare deprived the other of that quality and produced a false sense of security.
    Error to Jackson Circuit.
   Opinion by

Cooley J.

Winnie brought an action on the case against Eaton, to recover damages consequent upon the manner in which Eaton had used premises which Eaton had bought of him. On the trial the plaintiff gave evidence to show that he purchased of Eaton the premises by land contract of October 81st, 1864; that he received the deed November 29th; that he went into possession January 4th, 1865; that prior thereto a man named Cain was in possession; that he was allowed to remain for some time after the deed, but moved off when plaintiff moved on; that plaintiff brought sheep on, and that Eaton’s sheep had been shortly before placed on the premises, where he had been doctoring them. A day or two before he moved on, plaintiff told Eaton he wanted to move, and asked if his sheep, which were sound, would not take the disease under which Eaton’s sheep were suffering. T^at Eaton answered “ No, one frosty night will remove it.” Plaintiff gave further evidence tending to show that Eaton’s sheep were diseased with the scab, that plaintiff was unaware of it, and that Eaton has made statements tending to show that he was fully aware of the illness afflicting his sheep, and of the danger of its being communicated to other sheep which might be exposed to them. That plaintiff’s sheep did catch the disease, and were thereby greatly damaged. On this state of facts the Court was asked to charge.

1. That the plaintiff could not recover for the reason that the acts alleged as wilful or negligent were lawful acts on the part of the defendont, and, if the plaintiffs sheep took the scab by reason of the infection remaining after the occupation by the defendant, it would be damnun ahsqae injuria.

2. That the plaintiff .had" no right to rely on the statement of Eaton, that a frost would kill the scab, but, knowing the facts himself, was bound to care for his own sheep, and see that they were not infected.

These requests were refused, but the Court charged the jury that if the defendant negligently and knowingly, put diseased sheep on the premises, knowing that the disease was contagious, and that the plaintiff’s sheep would thereby be injured, he would be liable if plaintiff’s sheep were thereby infected; that if the plaintiff was guilty of negligence in trusting to what Eaton said, about the disease being cured by the frost; or if he was negligent in putting his sheep on the place after he had knowledge of defendant’s'sheep being diseased, then defendant would not be liable; that if plaintiff was himself negligent, or lacked due care in placing the sheep on the premises, or if, in other words, the plaintiff, through negligence contributed to the injury, he could not recover. The jury found a verdict for the plaintiff, and the correctness of this charge is the question to be determined b.y the Court.

Held, That the act of the defendant in putting the diseased sheep upon the premises, with knowledge of the disease and the liability to communicate the infection in the manner charged, was not a lawful act. Eaton was not a tenant; the right of Cain under the arrangement with Winnie to possession for a limited period, was a mere license. Under the terms of the arrangement Eaton had no right whatever to take infected sheep upon the premises. Under the circumstances, too, it not being clear that the character of the disease is so well known that plaintiff must be supposed to have been asfamiliar with it, and as Eaton, who assumed to. be acquainted with it, assured him that there was no danger, plaintiff cannot be held guilty of such negligence as to be precluded from receiving compensation for the injuryjsustained by him. If a party’s own wrongful act has brought another into peril, he is not at liberty to impute the consequences of his acts to a want of vigilance in the injured party, when his own conduct and untruthful assertions have deprived the other of that quality and produced a false sense of security.

Judgment of the Court below affirmed with costs.  