Dyer v. Mudgett

Wilson, J. This is an action to recover damages resulting to the automobile of the plaintiff from coming into contact with the defendant’s horse, which at the time of the accident was at large within the limits of the highway in front of the defendant’s premises. The plaintiff in his automobile was' driving along the highway just after ' dark and as he was passing the defendant’s premises the defendant’s horse [268] suddenly appeared in front of his car, and by reason of the collision the damages complained of resulted. At the close of the plaintiff’s testimony the defendant moved for a non suit which the presiding Justice granted, to which ruling the plaintiff excepted. It is no longer unlawful by statute to allow a horse or other domestic animal to be at large in the public highway without a keeper. Briggs v. Ice Co., 112 Maine, 344, 347. If injury and damage result therefrom the rights of the parties are determined by the common law, unless made unlawful by a town by-law or city ordinance. At common law while one was obliged to restrain his own animals and prevent them from trespassing on his neighbors’ lands, he might allow his domestic animals, such as horses, cattle and sheep, to graze within the limits of the highway, but only in front of his own premises. The abutting owner owned the soil to the center of the way, and subject to the right of public travel had the right to cultivate the soil and to the herbage growing thereon. Burr v. Stevens, 90 Maine, 500, 503; Robinson v. Railroad Co., 79 Mich., 323, 327; Holden v. Shattuck, 34 Vt., 336, 342; Heath’s Garage Lim. v. Hodges, 2 Law Rep., K. B., (1916) 370. Such animals being lawfully in the highway within these limits, unless of vicious disposition of which the owner has knowledge, do not render him liable for damages resulting that could not reasonably be anticipated. Cox v. Burbridge, 106 Eng. Com., Law Rep., 430; Heath’s Garage v. Hodges, supra; Holden v. Shattuck, supra; Dix v. Somerset Coal Co., 217 Mass., 146. This must, of course, be true when the animal was there without the owner’s knowledge, and through no negligence on his part. As to whether allowing domestic animals such as horses, cattle or sheep to run at large in the highway at night, even on that part fronting on-the owner’s premises, is an act of negligence for which the owner may be responsible in case of injury, it is not necessary to decide. This case is lacking in evidence that the defendant knowingly permitted the horse with which the plaintiff’s car collided to be at large on the night the accident occurred. It not being shown to be unlawful by any by-law of the town of Burnham for a horse to be at large in the public ways of that town, and without proof of negligence or knowledge on the part of the defendant, the plaintiff failed to sustain his declaration. Entry will be, Exceptions overruled.