Southworth v. Old Colony & Newport Railway Co.

Ames, J. According to the well settled rule in cases of this kind, it was necessary for the plaintiffs to prove that on their part there was no negligence, or want of due and reasonable care, directly contributing to the injury, and that it was caused entirely by the want of such care on the part of the defendants. It was assumed by the learned judge at the trial, that the fact that the horse had escaped from his driver, and was running at large and not under the control of any one, was decisive against the plaintiffs’ right to recover in this action, whatever negligence they might show on the part of the defendants. This is undoubtedly true in the case of actions against towns or cities, for injuries occasioned by a defect or want of repair in a highway. Under the 344 statute applicable to such cases, it must be made to appear that the defect or want of repair was the sole cause of the injury. The case of Davis v. Dudley, 4 Allen, 557, upon which the defendants rely, was a case of that kind. In that case, as in this, the horse had escaped from his driver and was running at large, and the court say that in such a state of facts “ the plaintiff unavoidably failed to show the exercise of due care, because it was not, and could not have been, at that time exerted,” and that the horse “ was not the subject of any care whatever ” at the moment of injury. The true ground of the decision, however, and the only ground on which it can stand, is not that the plaintiff was not in the exercise of due care, but that “ the blind violence of the animal, acting without guidance or direction,” contributed to the injury, and the defect in the highway was not the sole cause of it. It was not a question of due care on the plaintiff’s part, but the true ground of defence was, that, even if without fault or negligence on the plaintiff’s part, the horse had escaped or become wholly unmanageable, and that state of things was not produced by a defect in the highway, the town was not responsible, although the defect in the highway was also a cause of the injury. Fogg v. Nahant, 98 Mass. 578. Titus v. Northbridge, 97 Mass. 258, 265. It appears to us that the question whether there was a want of due and reasonable care on the part of the plaintiffs, which contributed directly to the accident, should have been submitted to the jury. We cannot say, as matter of law, that to leave the horse unfastened, for the time and under the circumstances described in the report, was necessarily a want of due, reasonable and ordinary care. It was evidence having a tendency, and perhaps a strong tendency, to prove negligence, but it was at all events for the jury to consider. This they have had no opportunity to do, as the court directed a verdict for the defen dants under the mistaken impression that the mere fact that the horse at the time of the accident was not under the control of any one was decisive upon the question of negligence. Titcomb v. Fitchburg Railroad Co. 12 Allen, 254. Verdict set aside; new trial ordered.