Bartlett v. Hooksett

Smith, J. "An illegal use of the highway by men, animals, vehicles, engines, or any other object, while movable and actually being moved by human will and direction, and neither fixed to, nor resting on, nor remaining in one position,” nor confined within any particular space, within the limits of the highway, might not render the town liable for damages occasioned by horses taking fright at the appearances presented by, or the sounds and scents emitted from, such objects; see Ray v. Manchester, 46 N. H. 59; Davis v. Bangor, 42 Maine 522; Bar [20] ber v. Roxbury, 11 Allen, 318. It would be quite difficult for towns, whatever powers they possessed, or however diligent they might be, to guard against annoyances of so shifting or temporary a nature. But if objects are suffered to remain (except for the merest temporary purposes) resting upon one spot, or confined within any particular space, within the highway, and are of such a shape or character as tobe manifestly likely to frighten horses of ordinary gentleness, injuries caused by the fright thus occasioned may properly be said to happen "by reason of the obstructions” or "insufficiency” of the highway, unless the person placing- or continuing those objects upon the highway, was, in so doing, making such use of the highway as was, under all the circumstances of the case, reasonable and proper. The recent decisions in Kingsbury v. Dedham, 13 Allen 186, and Cook v. Charlestown, 13 Allen 190, note, which are in conflict with the dictum of the same court in Howard v. North Bridgwater, 16 Pick. 189, p. 190, and with the views expressed in Dimock v. Suffield, 30 Conn. 129, seem to us incorrect; and the law was stated otherwise, apparently without objection, in Winship v. Enfield, 42 N. H. 197, and Chamberlain v. Enfield, 43 N. H. 356. Objects calculated to frighten horses would often be far more dangerous, and much less easily guarded against by the traveller, than many obstructions with which he comes in actual contact or collision ; and when they have been suffered to remain in the highway so long that the town may fairly be said to have had notice of their existence there, and a reasonable opportunity to remove them, (see 43 N. H. 265,) there can be no hardship to the town in holding it liable for damages caused by horses taking fright at them. The defendants’ position, that an object cannot be regarded as an obstruction solely because of its tendency to cause fright, cannot be sustained. "The obstruction, contemplated by the statute, is in general one from or by reason of mere matter.” Bartlett, J., in Ray v. Manchester, 46 N. H. 59, p. 60. In the case at bar it seems to be alleged that the immediate causes of fright were the motions and noises of animals. It has been said that "nothing is an obstruction which the town were not bound to have removed at the time of the injury under the circumstances of the particular case and that "the incumbrances which surveyors of highways are empowered to remove by the 59th chapter of the Revised Statutes are those by inert matter and it may be argued that the town, not having had the power to remove the animals, should not be held answerable for the consequences of their presence ; see Ray v. Manchester, 46 N. H. 59. In a case of fright occasioned by animals running at large in the highway this argument might deserve consideration, although in that case the town have power to enact a by-law which would give the citizens authority to remove the animals to the pound. Rev. Stats, ch. 31, sec. 7 ; ch. 137, sec. 1. But in the present case the swine were confined in a structure or enclosure which had been built within the ligrits of the highway, and which was used for the business of keeping and herding together such animals in one spot within the highway. It may well be inferred that the erection and continuance of this structure was the inducement which caused the owner of the swine [21] to keep them in that place, and that, if the sty had not been suffered to remain there, the swine would have been kept in some other enclosure not within the highway ; and even if they were allowed to run at large in the highway they might have been scattered, and the risk of fright to horses from their movements and noises have been less than when they were herded together. The continuance of the sty materially enhanced, and its removal would have correspondingly diminished, the danger to travellers from the movements and noises of the animals. The surveyor could have removed the "inert matter” composing the sty, even if he had no power to remove the swine, (a point upon which we give no opinion.) Whether the existence of the pig-sty with its inmates was an "obstruction” within the meaning of the statute, is a question of fact for a jury under instructions in accordance with the foregoing views, and with the other legal principles applicable to such cases; see Johnson v. Haverhill, 35 N. H. 74; Palmer v. Portsmouth, 43 N. H. 265. As we think that under this declaration it would be competent for the plaintiffs to offer evidence upon which a jury mights find that the accident happened "by reason of the obstructions” or "insufficiency” of the highway, the demurrer must be overruled. Demurrer overruled.