Ellis v. Lynn & Boston Railroad

Knowlton, J. Although there was some conflict of evidence in this case, the jury may have found that the plaintiff, having no reason to think it unsafe to do so, drove down a street in the city of Lynn on which was an electric railway and there met one of the defendant’s open electric cars filled with passengers, on which the motorman was continually sounding the gong; that his horse was frightened at the car and at the noise of the motor and of the gong, and manifested its fear in such away as to show the motorman that the plaintiff and his daughter who was riding with him were in great peril, and that the motorman, instead of stopping the car, or ceasing to sound the gong, kept on with the car and continued to make a loud clangor with the gong, so that the horse became unmanageable, broke the carriage, threw the plaintiff out, and thereby inflicted serious injuries upon him. The defendant’s requests for rulings go upon the theory that "the manager of an electric railway car upon a street is never called upon to stop the car or to change his method of managing it to avoid any danger from the fright of horses other than the danger of collision with the car. These requests were founded on an erroneous view of the law. It is a well known fact that most horses are frightened at their first view of a moving electric car, especially if they encounter it in a quiet place away from the distracting noises of a busy city street. It is only by careful training, and a frequent repetition of the experience, that they acquire courage to meet and pass such a car on a narrow street without excitement. The rights of the driver of a horse and the manager of an electric car under such circumstances are equal. Each may use the street, and each must use it with a reasonable regard for the safety and convenience of the other. The motorman is supposed to know that his car is likely to frighten horses that are unaccustomed to the sight of such vehicles, while most horses are easily taught after a time to pass it without fear. It is his duty, if he sees a horse in the street before him that is greatly frightened at the car, so as to endanger his driver or other persons in the street, to do what he reasonably can in the management of his car to diminish the fright of the horse, and it is also his duty in running the car to look out and see whether, [351] by frightening horses or otherwise, he is putting in peril other persons lawfully using the street on foot or with teams. In this way the convenience and safety of everybody can be promoted without serious detriment to anybody. Of course the owners and drivers of horses are required at the same time to use care in proportion to the danger to which they are exposed. Benjamin v. Holyoke Street Railway, ante, 3. These principles were adopted by the presiding justice for the guidance of the jury at the trial of this case, and the instructions given were correct. So far as the defendant’s requests for instructions embody correct propositions of law, they were covered by the instructions given. The judge was not bound to tell the jury that certain facts of which there was evidence would or would not constitute negligence apart from other facts which were testified to. The jury were rightly instructed to consider the question whether the motorman ought to have seen the frightened condition of the horse if he did not see it, and to treat his failure to see it when he might have seen it by the exercise of due care as negligence. There was ample evidence to warrant the verdict, and the bill of exceptions discloses no error in the proceedings. Exceptions overruled.