Bell v. Village of Wayne

Grant, J. The distinction, now contended for in cases of this character, was not lost sight of by the writer of the opinion in Doak v. Township of Saginaw, 119 Mich. 680 (78 N. W. 883). The differences between that case and this are these: In this case the banks were higher and steeper, at least on one side. In the Doak Gase the frightened horse backed into the ditch. In the present case the backing horse was struck by the plaintiff, started forward, crossed the road, and went down the embankment. The roadbed in this case was wider than that. Here the roadbed was 17 feet wide, and in good condition. In both cases the horses were frightened, and not by anything for which the township was at fault. In the Doak Gase it was uncertain what frightened the horse and caused him to back. In the present case it was two boys in a tree. The plaintiff lost control of his horse, so that he was unable to keep him within the traveled way, 17 feet wide. He testified that there would have been no trouble if the horse had not seen the boys in the tree. Whether this is a case where barriers should have been erected I do not deem it necessary to determine. In Massachusetts the statute expressly makes townships liable for the failure to erect barriers. What the decisions would be if their statute were like ours is, at least, doubtful. In Hinckley v. Inhabitants of Somerset, 145 Mass. 326 (14 N. E. 166), the stone wall which formed the barrier was 2 feet high. On the outside of the wall was water 10 feet deep, the surface of which was about 8 feet below the top of the wall. The horse became frightened a.t some oyster boats, and ran into or upon the wall, and got astride of it with his hind legs. That case is in direct conflict with Beall v. Township of Athens, 81 Mich. 536 [388] (45 N. W. 1014). It is impossible to reconcile them. In Harris v. Inhabitants of Great Barrington, 169 Mass. 271 (47 N. E. 881), it was held that the roadbed, 17 feet wide, was not defective by reason of narrowness, but that, there was evidence that the highway was defective for want of a sufficient railing. If, as my Brother Montgomery says, the rule has not been made entirely clear by the decisions, it undoubtedly results from the difficulty in determining when the driver has, and when he has not, lost control of his frightened, horse. In the Doak Case the horse had become so unmanageable that the driver could not prevent his backing. Doak’s counsel said in their brief: “The driver did his utmost to prevent the backing.” In the present case the-frightened horse was backing, was struck by the driver,, and had become so unmanageable that he could not keep him within the limits of the traveled road, wide enough for two teams to pass with perfect safety. Plaintiff did’ his utmost to keep the horse in the road, but failed to do so. We held in Si. Clair Mineral Springs Co. v. City of St. Clair, 96 Mich. 463 (56 N. W. 18), that where a. horse stopped, backed over the apron of a bridge against, an insufficient railing, fell into the water, and was drowned,, the city was not liable. In that case there was no fright. The horse started up the bank, and backed because of too great a load. Under the contention of the plaintiff in this case, if the horse, instead of backing from an overload, had backed from fright, and the jury could find that the driver had lost only temporary control, the city would, have been liable. In neither case was the city or village responsible for the proximate cause of the accident. What difference, in principle, between the two cases? Is it logical to say that, where the horse backs from other cause than fright, the defendant is not liable, but where he backs from fright it is liable, provided the jury are able to find that the driver had not lost complete control of him ? There certainly is no difference in the liability between backing and shying, or running down an embankment or into a ditch. [389] In Beall v. Township of Athens, the horse became frightened at a log upon the side of the highway. The driver struck his horse, which jumped forward, and upset the buggy. - In this case the horse became frightened, was struck, could not be kept within the highway, and went down the embankment. Where is the difference in principle or in the facts between that case and the present ? Both horses went over the side of the road because their drivers were unable to keep them within the traveled way. In Lambeck v. Railroad Co., 106 Mich. 512 (64 N. W. 479), plaintiff’s horse had run for a block, and ran into the end of a car standing in the highway. Plaintiff was unable to keep him from running the carriage against it. It was held that the horse was beyond control. In Agnew v. City of Corunna, 55 Mich. 428 (21 N. W. 873, 54 Am. Rep. 383), it was claimed that the horse was frightened at a large stone standing in the highway between the roadbed and the gutter, turned up a side street, and upset the buggy. It was there said: “If the stone had anything to do with the action of the horse and damage to the buggy, if was by frightening the animal, and not by hurting or impeding him.” If the horse in that case had shied or run into the gutter, or, running down the side of the roadbed, had caused the buggy to sway and upset, would not the rule of law have been the same ? In Bleil v. Railway Co., 98 Mich. 228 (57 N. W. 117), the horse was hitched, broke away, and ran into iron rails piled upon the street. If the driver had been in the buggy when the window fell, and the horse had started and run upon the rails, causing the same injury, would this court have said that the rails, and not the falling of the window, were the proximate cause of the injury, if the jury were enabled to find that the horse was not beyond control? What is the principle or rule upon which these decisions are based ? It is that the primary cause of the accident is the fright of the horse, not the defect in the highway. Why should a jury be left to speculate upon the question [390] whether the driver could have controlled his horse but for the defect in the highway ? In Langworthy v. Township of Green, 95 Mich. 93 (54 N. W. 697), the wagon struck a log, which was from 4 to 18 inches above the' roadbed, and near the center thereof. The horses had not left the traveled road, but had, for some reason which did not appear, shied a little to one side. It did not appear that the horses were running, or were going at an unsafe speed for a properly-constructed roadbed. By referring to the same case in 88 Mich. 207 (50 N. W. 130), it will be seen that the plaintiff was driving at a slow trot when the log was struck. We are not concerned with the rule in other courts, if this court has established a rule and followed it. In the cases above cited, I think we have established and recognized the rule to be that a township is not liable, under our statute, for the failure to maintain barriers, where the horse leaves a traveled highway, which is in good condition and wide enough to drive upon with safety, through any cause for which the township is not responsible. When a horse has become so frightened that, under proper management, he cannot be kept within a good roadbed 17 feet wide, he is beyond control, under our decisions, and the fright, not the absence of barriers, is the cause of the accident. Upon no other rule can these decisions, in my opinion, be sustained. I think the learned circuit judge was correct in directing a verdict for the defendant. Its reversal would, in my judgment, result in overruling the cases above cited, and approved in Doak v. Township of Saginaw. The judgment should be affirmed. Long, J., concurred-with Grant, J.