Stacey v. Haverhill, Georgetown & Danvers Street Railway Co.

Lathrop, J. If we assume in favor of the plaintiff that there was some evidence of negligence on the part of the defendant’s motorman in not stopping the car sooner than he did, we are of opinion that the plaintiff did not sustain the burden of proof, which was upon him, of showing that he himself was in the exercise of due care, in leaving the horse unfastened in any way for ten minutes by the side of a street when he knew that a car was about due. The plaintiff sometimes used a weight, and it is evident that if one had been used in this case the accident might not have happened. While there was evidence that the horse was kind, easily managed and not afraid of cars, yet the accident was caused not by the horse being frightened, but by his wandering across the street and the track of the defendant, and grazing upon some trees, leaving the wagon upon the track. During the ten minutes while the plaintiff was absent, he remained in a house, during which time he did nothing with reference to the horse, nor did he see the horse. The case differs from Southworth v. Old Colony & Newport Railway, 105 Mass. 342, upon which the plaintiff chiefly relies. In that case the driver was not accustomed to hitch his horse, and was absent only four or five minutes. The street where he left the horse was not one where cars were passing. The railroad crossing was on another street, and from fifty to one hundred rods distant from the place where the horse was left. We do not intend to decide that momentarily leaving a horse [329] unhitched upon a street, is negligence as a matter of law; but we are of opinion that under the circumstances of the case before us, the instruction requested should have been given. Exceptions sustained.