Buck v. City of Biddeford , 82 Me. 433 ( 1890 )

Walton, J.

As the plaintiff was driving along one of the streets of the city of Biddeford, his horse’s foot slipped into the grating covering a cesspool, and the horse was thereby thrown down and so badly injured that it was necessary to kill him. The plaintiff claims that the city is liable for the value of his horse. The city denies its liability.

1. The accident occurred on Sunday. And it is claimed that on this account the plaintiff is precluded from recovering. We think not. It is true that all unnecessary travelling on the Lord’s day is prohibited. So are all other kinds of worldly business. And it has been decided that when one receives an injury through a defect in a highway while unlawfully travelling on the Lord’s day, a recovery for the injury can not be had. Cratty v. Bangor, 57 Maine, 423. But all travelling on the Lord’s day is not unlawful. If it was, one could not visit the sick, nor go to church, nor attend a funeral, on that day, without being guilty of a crime. And it was held in O’ Connell v. Lewiston, 65 Maine, 34, that one might lawfully travel on the Lord’s day for exercise in the open air. And it was held in Crosman v. Lynn, 121 Mass. 301, that to go after a domestic on the morning of the Lord’s day and bring her home to assist in the preparation of the morning meal was not unlawful. That such an act might properly be regarded as a work of necessity. In this case, a woman had been visiting at the plaintiff’s house, and she informed him on the Lord’s day that she had got to go home that night. It was in December. The day was cold and windy, and the distance was two miles. He thereupon took his horse and sleigh and was carrying her home at the time of the accident. We do not think the act was unlawful. We think it may be justified on the ground of necessity or as a deed of charity.

2. It is claimed that the way was not defective. We think it was. It had a cesspool in it with an iron cover; and the evidence shows that between one of the outside bars and the rim was a space wide enough to receive a horse’s foot; and that such was the width of the space is demonstrated by the fact that the foot of the plaintiff's horse did slip into it, and was there held so fast as to throw him down. And it was with great difficulty that his foot was extricated. And when it was extricated, it was so torn and injured that the horse was ruined and had to be killed. We think the street must be regarded as having a very dangerous defect in it.

3. Another question is whether the city had sufficient notice of the defect. We think if did. It was decided in Holmes v. Paris, 75 Maine, 559, that when one of the officers of a town to whom notice of a defect may be given, himself creates a defect by placing some object dangerous to travellers within the limits of the highway and leaving it there, the statutory notice of twenty-four hours is unnecessary; that “notice of a fact to a person who already knows the fact can not be useful.” And this case falls within the principle of that case. The cover to the cesspool which created the defect was placed there by a street commissioner of the city. He knew its condition from the beginning, and no other or further notice was necessary.

4. It is claimed that at the time of the accident the plaintiff Was not in the exercise iof due care. We think he was. It is true that he was not in the middle of the street. He had driven to the side of the street and was near the curbing. But he was properly there. He had reached the end of his journey and was about to stop. Surely he could not be required to leave his horse and sleigh in the middle of the street while stopping. And this was not a road in the country, the sides of which had been left unprepared for travel. It was one of the public thoroughfares of a city ovpr all parts of which a traveller had a right to presume that he could drive with safety. We think the plaintiff was in the exercise of reasonable care.

■ 5. Damages. The plaintiff’s horse was so badly injured that, after keeping him nine, or ten days, and finding that a cure was probably impossible, it was deemed advisable to kill him, and he was killed. The evidence satisfies us that he was worth before the injury $150 ; and we think the plaintiff is entitled to recover that amount.

Judgment for plaintiff for $150 damages.

Daneorth, Virgin, Emery, Foster and Haskell, JJ., concurred.