Nichols v. Inhabitants of Athens , 66 Me. 402 ( 1877 )

Peters, J.

The body of a common riding wagon was left on the side of the road, laid up edgewise against some bushes, being within the limits of the road, but entirely outside of the traveled track. The plaintiffs’ horse took fright at it, and an injury was caused thereby. Whether that was an incumbrance sufficient to render the town liable for a defect in the highway, is the precise question presented..

It is difficult to determine what would be, and what would not be, a defect that would render a town responsible in damages for an injury received upon a highway. It may be a question of law or of fact, or of law and fact combined, according to circumstances. If the evidence is clear and undoubted, it may be so palpable a case that the law can easily settle it one way or the other. The doubtful cases belong usually to the jury, for décision. This case is left to us, both upon the law and the fact, to be determined according to our view thereof.

In Card v. Ellsworth, 65 Maine, 547, we recently had occasion to review the decisions in this state affecting the liability of towns in cases of injury occasioned by the fright of horses at objects upon the highway. We there decided that a person might, under proper evidence, recover in a case of the kind, where the object of fright was situated within, and was per se a defect upon, the traveled portion of the highway. There is no doubt that a town would be liable in damages in many cases where horses become frightened by objects within the .traveled way, when the same objects could not reasonably be regarded as constituting a defective road if situated outside the traveled way. Whether a recovery can be had where the fright is caused by an object outside of the traveled road, but within its located limits, and, if so, to what extent and under what limitations and conditions, we are disposed to regard as questions not yet judicially determined in this state. Our opinion is, that upon the facts of this case the plaintiffs are not entitled to recover.

In the case cited, the court laid down the general proposition, that in no such case can a plaintiff recover, “unless the object of fright presents an appearance that would be likely to frighten ordinary horses; nor unless the appearance of the object is such that it should reasonably be expected by the town that it naturally might have that effect; nor unless the horse was, at least, an ordinarily kind, gentle and safe animal, and well broken for traveling upon our public roads.”

Subjected to this test the plaintiffs’ claim fails. A wagon body is a very common and practical tiling. It is accustomed to be seen in all forms and shapes upon and about our streets. It resembles, in any position, nothing frightful or ugly. Besure, the horse was alarmed by its appearance. But the same horse might as well be terrified by suddenly seeing some rocks or bushes by the roadside, or be alarmed at a wood pile, a manure heap, a hay rack, a cart, a wheelbarrow, a guide-board, a telegraph pole, or something else of the numberless inanimate things necessarily seen near or upon our streets and highways. All the eccentricities of sensitive horses cannot be guarded against by towns. The slightest objects will sometimes frighten them. A bright chip, or a bit of paper in motion, or an umbrella, or even a shadow, will terrify some horses. But many such incumbrances there are upon our roads that cannot be considered defects. There must be a sensible and practical limitation of the municipal responsibility. Towns are not to be regarded as insurers. The truth is, that, in many of this class of cases, more fault should be charged upon the horse and his driver, and less upon the town. It is an easy thing for. witnesses to bolster up the character of horses for gentleness, and to swear to careful driving, where it is a point to be proved by opinion. But we think that the circumstances of this case render it very doubtful, at least, whether “the colt” (so called by the female plaintiff,) was safely adapted to traveling on the road.

But, at all events, we are not satisfied that it should reasonably have been expected by the town, that the wagon body, situated as it was, would naturally have the effect to frighten “an ordinarily kind, gentle, and safe animal, well broken for traveling upon our public roads.” The common experience of men would not lead, and did not in this case lead, the town officers to anticipate such a thing. The town could not reasonably foresee that such an event might be likely to happen. The town, therefore, was not in fault for the accident; and if the plaintiffs were not, then the accident was a casualty and misfortune merely, without fault upon the part of any one. Plaintiffs nonsuit.

Appleton, C. J., Walton, Danfoüth, Vikgin and Lijbbey, JJ., concurred.