Bemis v. Inhabitants of Arlington

Devens, J. It was decided in Stone v. Hubbardston, 100 Mass. 49, that “ the fact that a horse starts or shies at an object in the highway, (whether such object is or is not a defect in the way,) and is thus brought in contact with a defect, arising either from want of proper repair in the surface of the highway or of sufficient railing at the side of it, is not conclusive against the right of the driver to recover damages against the town for an injury thereby resulting to him.” It was further held that a horse well broken and adapted to the road, who swerves or shies from the direct course, is not in any just sense to be considered as escaping from the control of the driver if he is in fact only momentarily uncontrolled, and that if, while so swerving or shying, he is brought in contact with a defect in the road and injured thereby, his owner may recover damages for such injury. The principle of this decision was re-affirmed in Babson v. Rockport, 101 Mass. 93. It is claimed by the plaintiff that his case comes precisely within those cases, but it obviously goes further, and requires us to hold that under such circumstances as have been stated, if the horse is brought in contact, not with the defect, but with another carriage rightfully in the road between the horse and the defect, but nearer to the horse than perhaps it would have been but for the defect, then the owner may recover. Upon the testimony in the present case, assuming that the ridge in the highway was a defect, yet it does not appear but that the Rockwell carriage was to the right of the middle of the travelled part of the road, and where it legally might have been, had there [509] been no such defect. It was not the duty of the drivers to keep the entire width of the road between their carriages, and to drive each as far over as possible upon his own side of the road. The full strength of the plaintiffs case, then, is that but for this ridge which compelled the Rockwell carriage to be driven as near as it was, it may be that it would have been driven at a greater distance, and in such case the plaintiff’s horse in shying would not have come in contact with it. As, however, the Rockwell carriage could have been driven rightfully where it was driven, it may also be that even if the road had been in no degree narrowed by the ridge, the accident would still have occurred. The liability of towns is a limited one, and to enable the plaintiff to recover, it must be shown that the defect in the highway was the sole cause of the injury. Murdock v. Warwick, 4 Gray, 178. Marble v. Worcester, 4 Gray, 395, 402. Hixon v. Lowell, 13 Gray, 59, 64. Babson v. Rockport, supra. Upon this evidence we are of opinion that the jury would not have been warranted in finding a verdict for the plaintiff, and that it fails to show that the defect was the sole cause of the injury. It was suggested in the argument that whether the stones which were within the limits of the highway, but not within the travelled track, at which the horse actually was frightened, were objects calculated to frighten a horse, and thus constituted a defect, was a question which should have been left to the jury. But it is well settled that an object even within the limits of the travelled way, which may frighten horses, and is likely to do so, but is not otherwise an obstruction to travel, is not a defect within the meaning of the statutes requiring towns to keep their ways in repair. Keith v. Easton, 2 Allen, 552. Kingsbury v. Dedham, 13 Allen, 186. Cook v. Charlestown, Ib. 190: 98 Mass. 80. Upon the agreement of parties, there must therefore be Judgment for the defendants.