Jackson v. Castle

Haskell, J. Does the plaintiff’s declaration set out a cause of action ? It charges in substance that the plaintiff, being lawfully in a public street with his two horse team, suffered special damage in'the loss of a horse by reason of both horses taking fright at the defendant’s sliding in the same street with others engaged in boisterous outcries incident to their sport. Sliding in a street accompanied with boisterous conduct is not necessarily unlawful. Nor is it necessarily a public nuisance. The averment that defendant’s acts were " contrary to law ” does not help the plaintiff’s case. It is merely a conclusion that he draws from the facts stated. If the facts do not warrant it, the court cannot adopt it. Sliding in a street, accompanied with boisterous conduct calculated to frighten horses lawfully travelling therein, may be a public nuisance; but there is no such averment in the declaration. Sliding may be prohibited in streets by a city ordinance, and a violation of the same would be evidence tending to show negligence. If the plaintiff would recover, he must show negligent or unlawful conduct to be the proximate cause of his injury. Plaintiff nonsuit. Peters, C. J., Walton, Danforth, Libbet and Emery, JJ., concurred.