Horr v. New York, New Haven, & Hartford Railroad

193 Mass. 100 | Mass. | 1906

Hammond, J.

Upon the evidence a jury might find that the mail bags were piled up in such a manner and in such proximity to the travelled part of the highway as to be likely to frighten horses, ordinarily gentle and well broken, while travelling upon the way, and thus to constitute a menace to public travel; and they might further find (although upon this point the case is close) that the defendant, knowing through its servants the nature of the obstruction, negligently suffered the bags to lie in that position a longer time than was reasonably necessary and that thereby the bags became a nuisance. There was also evidence of the due care of the plaintiff, and that the horse was ordinarily gentle and well broken. The case therefore should have been submitted to the jury. Bemis v. Temple, 162 Mass. 342, and cases therein cited. Lynn v. Hooper, 93 Maine, 46, and cases there cited.

At the argument before us it was stated by the counsel for the defendant that the place where the bags lay was also within the limits of the railroad location, but since that does not appear on the record and the plaintiff did not agree that the case should be treated by us as though that statement were true, we have' not considered what difference, if any, in the law of the case would be made by such a fact.

Exceptions sustained.