Bowes v. City of Boston

155 Mass. 344 | Mass. | 1892

Knowlton, J.

These are four suits tried together, in all of which the defendant’s liability depends on the same facts. Our discussion of the first will be equally applicable to the others also.

The only ground on which the plaintiff seeks to recover is, that the horse which she was driving shied at a pile of stones, and passed to the opposite side of the road, so that one of the wheels of the buggy scraped against a stone in another pile there, making a loud noise, but not diverting the carriage from its course, nor causing it to tip, nor in any way disturbing its equilibrium; that her horse was frightened at the noise, and started up, and, after trotting fast a short distance and going between trotting and running, broke into a run, and, in turning a corner, threw her out, and caused the injury.

The notice given to the defendant stated the defect and cause of the injury to be “large stones extending about six feet into the travelled part of said way, . . . piled within the travelled way in such grotesque and unusual shape that they constituted a nuisance by their liability to frighten horses.” An injury resulting from such a cause is not one for which a city or town is liable, and the jury were instructed at the trial, that, in order to recover, the plaintiff must satisfy them that a collision with the pile of stones was the sole cause of the accident. The notice gave the authorities of the city no reason to expect that the plaintiff would present at the trial such a case as that on which she finally relied. They might well assume that the statement in the notice was true, and that the plaintiff claimed damages on account of an accident caused by the fright of her horse at a pile of stones of such a grotesque and unusual shape as to be likely to frighten horses. The giving of a proper notice stating the time, place, and cause of the accident, is a condition precedent to recovering in cases of this kind. Gay v. Cambridge, 128 Mass. 387. Mc Dougall v. Boston, 134 Mass. 149. Under the St. of 1882, c. 36, which was repealed and re-enacted by the St. of 1888, c. 114, a notice defective in either of these particulars is sufficient if it is shown “ that there was no intention to mislead, and that the party entitled to notice was not in fact misled thereby.” Under this statute, the burden of proof is on the plaintiff to show that the defendant was not misled by the notice, as well as that there was no intention to mislead. This may often be inferred from the circumstances, without testimony directly to the point. But in the present case the notice was of a kind which would have a direct tendency to mislead, and there was no evidence tending to show that the authorities were not misled by it, or that, as set out in the bill of exceptions, they “ ever, until the time of trial, had a different account of the accident from the one given in the notice.” Such a notice, and such an investigation as the authorities would naturally make on account of it, would be likely to lead them to rest their defence on the legal proposition that cities are not liable for accidents caused by the fright of horses from objects of a grotesque or unusual appearance in the street. As is said in Fortin v. Fasthampton, 142 Mass. 486, a misstatement is more likely to mislead than no statement at all. We are of opinion that there was no evidence on which the jury could find that the notice was sufficient to enable the plaintiff to recover for an injury caused by a collision with a pile of stones, and that the ruling requested on this point should have been given.

In the last two suits, the court was right in refusing to rule that the administrator could not recover in both actions if he proved the facts alleged in both. The right of action given by the Pub. Sts. c. 52, § 17, is independent of the right of action given by § 18 of the same chapter. The statute creating it was enacted at a different time, and for another purpose. The right to recover damages suffered in his lifetime by one who dies from an injury received on a highway survives to his administrator for the benefit of his estate, and the damages are estimated on the theory of making compensation. Pub. Sts. c. 165, § 1. The action by an administrator, under § 17, on account of his intestate’s loss of life, is to. recover a sum not exceeding $1,000 for the benefit of the widow and children or of the next of kin of the deceased, to be estimated according to the degree of culpability of the defendant. Both actions, under the statute, may proceed at the same time, on independent grounds and for different purposes.

The defendant contends that the jury could not find that the grating of the wheel upon the stone was the proximate and sole cause of the accident, even if the horse was frightened by it. There is certainly very little to show that the sound was the cause of the accident. On the plaintiff’s theory, the horse was so frightened by the first pile of stones as to pass out of control of the plaintiff far enough to bring the wheel in contact with a stone in the other pile, on the opposite side of the street, and, after the sound caused by the contact, the evidence tended to show that for a considerable distance he was not running, and that he afterwards began to run. No accident occurred until he reached March Avenue, four hundred and twenty-eight feet from the pile of stones. This avenue led to the stable where he was kept, and he had an inclination to turn into any street leading directly to his stable when he came near it; so that it was difficult to restrain him from so doing. In turning into March Avenue the buggy was upset. But, on the whole evidence, it was a queston of fact for the jury whether the increased speed of the horse was caused by fright from the sound; and if they found that it was, they might also find that the sound was the direct and proximate cause of the accident, even if there were concurring conditions, as distinguished from active causes, without which the accident would not have happened. We are of opinion that there was no error in submitting this question to the jury.

We now come to the most difficult part of the case. The defendant contends that fright from a sound produced by the scraping of a wheel against the side of a stone is no different in its legal character from fright at the sight of the stone. It is well settled in this Commonwealth that cities and towns are not liable for injuries caused by the fright of horses from objects in the highway, even if the objeet'is one that would be ever so likely to frighten horses. Can it make any difference whether the fright is from sight or sound ? In general, and on principle, we think the answer should unhesitatingly be, No. In Keith v. Easton, 2 Allen, 552, it is said that “ in no case has it been held that an object existing within the limits of a highway ... is a defect in the way, merely because it exposes the traveller’s horse to become frightened by the sight of it, either at rest or in motion, or by sounds or smells that may issue from it.” Fright from sound is put in the same category with fright from sight. See also Lincoln v. Boston, 148 Mass. 578.

Does it make a difference that the sound is produced by touching the object in passing, without causing the least obstruction to the passage or disturbance of the equilibrium of the vehicle? It is a part of the adjudication in Cook v. Charlestown, 98 Mass. 80, that it can make no difference “ that the object which frightened the horse is one that would have been an obstruction and defect in the way if he had come in contact with it. It is not its quality as an obstruction which causes the injury complained of, but its quality as an object of terror to the horse.” Under that decision, it makes no difference in the present case that the stones were so near the centre of the way that, if the plaintiff had driven against them in such a manner as to be obstructed in passing and thrown out, they would have been a defect. As an obstacle over which travellers could not pass in safety they were a defect, but it was not their quality as an obstruction which caused the injury, but their quality as an object which might frighten horses by sound if grazed by a vehicle passing by. The contact was not of the kind in reference to the possibility of which the stones constituted a defect. Would it make any difference if the sound which frightened the plaintiff’s horse had been produced by contact of a vehicle drawn by another horse? We think not. Moreover, even if cities and towns were liable for injuries caused by the fright of horses from objects which would be likely to frighten them by sound, this was not such an object. No one would have said that the danger of an accident from fright of a horse at a sound produced by contact with the stone was so great as to make the stone a defect.

Of late it has been the policy of the law not to hold cities and towns to so large a liability as existed under the earlier legislation, and we do not deem it wise to enlarge the class of cases in which there may be recovery against them. A road may be very dangerous on account of objects in it which are likely to frighten horses, and the court, in deciding Kingsbury v. Dedham, 13 Allen, 186, and the other cases above cited, might have held the defendants liable, by interpreting the statute more liberally in favor of the plaintiffs. But we think the construction adopted was founded on sound public policy, and that the present case falls within the principles heretofore laid down by this court. We are disinclined to hold that contact with a stone, which was merely a touch, and which produced none of the effects in reference to which stones would "be deemed a defect, but only effects in reference to the production of which objects in a way are not defects, makes the case any stronger for the plaintiff than if the same effect had been produced without contact. JElxceptions sustained.