| Mich. | Jun 13, 1876
This is an action on the case, in which Nichols sought to recover for an injury occasioned by his horse taking fright as he was driving along the public highway near Battle Creek about 9 o’clock in the evening of September 9, 1874. The fright was caused by an engine mounted on wheels, which the defendant was moving along the same highway by means of the steam power by which it was operated. The engine was used mainly for threshing, and was moved from place to place for that purpose. The traveled part of the highway at the place of the accident was about thirty feet in width, and Macomber gave evidence tending to show that he was moving on the extreme right of this traveled way, and that he shut off steam and- stopped the engine when the horse was seen approaching. Each party claimed to be free from negligence himself, and charged negligence upon the other. The following instructions, among others, were given to the jury at the request of Nichols:
“ 1. If you find that about the 9th day of September last the plaintiff was driving a well-broken and gentle horse in the public street or highway in Battle Creek, in this county, that the defendant by running a steam engine along said highway caused plaintiff’s horse to run away, and that plaintiff was thereby injured, either in person or property, and that such steam engine ivas well calculated to frighten horses of ordinary gentleness, then the plaintiff is entitled to recover.
“2. The right to travel in a public highway is a right which is common to all, and no person has the right to impede or render dangerous the travel of the highway by any other person.
“3. A party placing upon the highway any vehicle unusual, and calculated from its appearance and mode of locomotion to frighten horses of ordinary gentleness, is liable for all damages resulting therefrom.
“á. It is no defense to this suit that the defendant was*215 using the steam engine in the transaction of his lawful and legitimate business, if his use of the highway in such business rendered the highway dangerous for others to travel.
“5. The defendant had no right to run his steam engine on the public street or highway if such engine was calculated to frighten horses of ordinary gentleness.”
Other instructions of similar import were given, but the foregoing are all that need be stated to make clear the view which was taken by the circuit judge of the main point in controversy.
It is hardly probable that when the circuit judge told the jury that no person has a right to impede or render dangerous the travel of the highway by any other persou, he intended them to understand this language literally and without qualification. Almost any proper use of a highway may under some circumstances impede the use by another, and possibly render it dangerous. The appearance of any unusual object in the streets may have some tendency to add to the dangers of travel by means of horses or other animals, and there is always more or less danger that a high spirited horse, or indeed any other horse, may become unmanageable, and people who are using the highway be exposed to risks -in consequence. But it does not follow that the driver of such a horse is responsible for the consequences because of his bringing him into the street impeding or rendering dangerous the travel by others. The question is one of reasonable use and reasonable care, and if these are observed he is not chargeable. Probably the circuit judge did not intend to be understood as going beyond the requirement of reasonable care and caution on the part of all persons making use of the public ways; and this instruction, if it stood alone, would not have been likely to mislead.
But the instruction that any one placing upon the highway a vehicle unusual,' and calculated from its appearance and mode of locomotion to frighten horses of ordinary gentleness, is liable for all damages resulting therefrom, is not
Injury alone will never support an action on the case; there must be a concurrence of injury and wrong. If a man does an act that is not unlawful in itself he cannot be held responsible for any resulting injury unless he does it at a time or in a manner or under circumstances which render him chargeable with a want of proper regard for the rights of others. In such a case the negligence imputable to him constitutes the wrong, and he is accountable to persons injured, not because damage has resulted from his doing the act, but because its being done negligently or without due ©are has resulted in injury. If the act was nqt wrongful in itself, the wrong must necessarily be sought for in the time or manner or circumstances under which it was performed, and injury does not prove the wrong, but only makes o.ut the case, for redress after the wrong is established.
Persons making, use of horses as the means of travel or traffic by the highways have no rights therein superior to those who make use of the ways in other modes. It is true that locomotion upon the public roads has hitherto been chiefly by means of horses and similar animals, but persons using them have no prescriptive rights, and are entitled only to the same reasonable use of the ways which they must accord to all others. Improved methods of locomotion are perfectly admissible, • if any shall be discovered, and they cannot be excluded from the existing public roads, provided their use is consistent with the present methods.
A highway is a public way for the use of the public in general, for passage and traffic, without distinction. — Starr v. C. & A. Railroad Co., 4 Zab., 597. The restrictions upon its use are only such as are calculated to secure to
It is not long since the great highways by water were supposed to be of such transcendent importance as to entitle those who made use of them to superior rights over those making use of other highways which might intersect them. Accordingly bridges over navigable waters, when permitted at all, were required to be so constructed as to secure to vessels an uninterrupted passage, and the travel and .traffic by land was compelled to await the convenience of travel and traffic by water. But this rule was never inflexible; it was a rule that must yield to circumstances; and it was never a matter of course that the master of a vessel was entitled to a remedy as for a legal injury when the convenience of one making use of a bridge was preferred to his. The case was one in which rights must be harmonized, and unavoidable inconveniences to one party or the other must be submitted to as something inseparable from any employment of the powers of government to provide or regulate the channels for travel and commerce. There may be, in any case in which a highway by land intersects a highway by water, questions of difficulty as to whether, in view of all the cir
But the bringing of an unsightly object into the common highway is no more of a wrong because of its tendency to frighten horses of ordinary gentleness, than is the construction of a bridge over a river a wrong because of its tendency to delay vessels. The one may be a wrong under some circumstances, and so may the other; but it-is equally true that both may be proper and lawful under other circumstances. It would be difficult to pass through the streets of our large towns without encountering objects moving along them which are well calculated to frighten horses of ordinary gentleness until they become accustomed to them; but
It has justly been remarked by the. supreme court of Illinois in a case involving the right to make use of steam as a means of locomotion in the public streets, that “a street is made for the passage of persons and property, and the law cannot define what exclusive means of transportation and passage shall be used.” “To say that a new mode-of passage shall be banished from the streets, no matter how much the general good may require it, simply because the streets were not so used in the days of Blackstone, would hardly comport vyith the advancement and enlightenment of the present age.” — Moses v. P., F. W. & C. R. R. Co., 21 Ill., 516" court="Ill." date_filed="1859-04-15" href="https://app.midpage.ai/document/moses-v-pittsburgh-fort-wayne--chicago-railroad-6949470?utm_source=webapp" opinion_id="6949470">21 Ill., 516, 523. In some of the large cities of the country sufficient means of transit by the old methods have become practically out of the question, and steam power is permitted as a matter of necessity, not only as a means .of moving vehicles by the side of teams in the street, but also over their heads, where the liability to cause fright would perhaps be still greater. Horses of ordinary gentleness would at first be liable to take fright, but after a time they become accustomed to the objects that at first are so fearful to them, just as in the country they become accustomed to see trains of cars passing near them along the ordinary railways, which sometimes for a considerable distance run in immediate proximity to the common roads. Horses may be, and often
In the circuit court instructions were giAren on the subject of mutual negligence, Avhich are probably unexceptionable; but they seem to have been entirely unimportant, because the other instructions, Avhich treated the use of the engine in the public highway as unlawful, necessarily disposed of the case. Wo think the instructions last mentioned were erroneous. The engine as a means of locomotion in the highAvay aves not necessarily a nuisance. It might possibly be a nuisance at some times, and under some circumstances, and even Avhere it might be proper to make use of it the manager or OAvner might be liable to damages for negligence in management to the injury of others. But the question in any such case must be one of fact; a question of reasonable conduct and management on the part of both parties; .and should be submitted to the jury as such.
The judgment must be reversed, Avith costs, and a now trial ordered.