13 R.I. 139 | R.I. | 1880
The demurrers present two questions. The first is whether, if an object which is calculated to frighten horses is left in a highway and is negligently permitted to remain there by the town charged with the repair of the highway after reasonable notice, the town is liable, in case the horse of a traveller is actually frightened by it and runs away, for the injury which ensues. This question has been decided negatively in Massachusetts, the courts of that State holding that the town is not liable for injury resulting from fright without collision with the object, and affirmatively in several other New England States, and in one western State. The Massachusetts *140
cases cited for the defendant are Kingsbury Wife v.Inhabitants of Dedham, 13 Allen, 186; Cooke Wife v. Cityof Charlestown,
The second question comes up in this way. The object complained of was three flat cars loaded with immense iron castings which one Lovell had temporarily left in the highway over which he was moving them to their place of destination. The plaintiffs formerly brought their action against Lovell,1 as the author of the nuisance, and recovered judgment against him, on which they took out execution and had him committed to jail; after which Lovell applied for the benefit of the United States Bankrupt Act, and was discharged, the plaintiffs having proved their judgment as a claim against him. The defendant town pleads these proceedings in bar of the present action. Its counsel contends that Lovell is to be regarded as a joint tort-feasor with the town, and that Lovell being so regarded, the proceedings being duly pleaded constitute a perfect estoppel. If we agree with the counsel that Lovell and the town are to be regarded as joint tort-feasors, we cannot disagree with him in his conclusion without overruling the decision of this court in Hunt v.Bates,
The decision of the court therefore is that the demurrer to the declaration must be overruled, and that the demurrer to the special plea in bar must be sustained, and the plea overruled.