Jewett v. Gage

Cutting, J. It appears, that, on August 29, 1865, the plaintiff’s daughter, with a suitable horse and vehicle, and in the exercise of ordinary care, was travelling in and along a public highway in the vicinity of the defendant’s house, when an animal, called by various names, such as hog, sow, swine, and, by the classical counsel for the plaintiff, " monstrum .horrendum,” aged, of large size, filthy, unclean by the Levitical, and prohibited from running at large in the streets by the statute law, suddenly arose from the gutter, frightened the horse, and caused the damage for the recovery of which this suit is brought. It is contended, by the defendant’s counsel, that such animals have the right to run in the highway when accompanied by a keeper. It may be so, but such is not this case. There was no keeper, and, besides, the hog was not in transitu. It is a mistaken idea that animals prohibited by statute from running Cat large without a keeper, if with a keeper, can be turned into the highway for the purpose of grazing, or swine recubans to wallow in the mire by the road-side. The case of Stackpole v. Healey, 16 Mass., 31, is full and conclusive upon this point. The argument and authorities cited, that the defendant would not be liable, unless the town was liable for suffering a nuisance in the highway, have no application. The one is controlled by the common, and the other by statute law. Exceptions overruled. Appleton, 0. J., Walton, Dickerson, Danporth and Tapley, JJ., concurred.