88 Minn. 465 | Minn. | 1903
Action to recover damages for personal injuries alleged to have been caused by the negligence of defendants. Plaintiff had a verdict in the court below, and defendants appealed from an order denying their motion for a new trial.
The facts are as follows: Defendants are copartners, and at the time complained of were engaged in constructing, under contract with Clay county, abutments to a bridge over a coulee on a public highway in the southern part of the city of Moorhead. A portion of the material used was building stone, and a large quantity of it was hauled and deposited by defendants near the traveled track of the highway at the point where the bridge was being constructed. It appears that an old bridge at this point had become defective and out of repair, and was being replaced by a new one. The pile of stone, as stated, was placed by defendants in close proximity to the traveled track, and in height was somewhat above the grade of the road. At the time complained of, plaintiff was driving with a horse and buggy along the highway, and, as he approached the pile of stone in question, his horse became frightened and unmanageable, by reason of which plaintiff was thrown from the buggy and severely injured.
Defendants were engaged in a public work upon a highway under a contract with the public authorities, and had the undoubted right to make such reasonable use of the highway as was necessary in carrying forward the work. But they had no right to its exclusive use, and were bound so to use it as not to interfere unnecessarily with public travel thereon. They had the right to deposit upon it the material used in their wmrk, and at an accessible and convenient distance from the point where the work was being performed; but they were bound so to deposit and place it as not to render the use of the highway by the public dangerous and unsafe, and to exercise reasonable care not to cause horses of ordinary gentleness to become frightened. The action is not founded on a claim that the act of defendants amounted to a nuisance in law, but upon the contention that they were negligent as to the manner in which they exercised a legal right in respect to depositing the material in the highway.
■ The trial court submitted the case to the jury on this theory, and its instructions, though not in the language of the special requests of defendants, fully and fairly covered the law of the case. The principal error complained of by defendants is the refusal of the court to give to the jury some of their special
The court permitted plaintiff to prove by expert testimony that the pile of stone was of a character naturally calculated to frighten horses of ordinary gentleness, and of this defendants complain. They also complain of the ruling of the court permitting evidence of the fact that other horses of ordinary gentleness were frightened at this same place, and by reason of the pile of stone. We find no reversible error in either of these rulings, and, conceding that the testimony of the experts that the natural tendency of the» pile of stone would be to frighten ordinarily gentle horses was incompetent, it in no way prejudiced defendants’ case before the jury. Such evidence was offered by both parties, and both seem to have had an equal opportunity in this direction. The fact that other horses of ordinary gentleness were frightened corroborated the contention of plaintiff that the pile of stone tended to frighten, such horses, and was proper for the consideration of the jury. Morse v. Minneapolis & St. L. Ry. Co., 30 Minn. 465, 16 N. W. 358; Phelps v. Winona & St. Peter R. Co., 37 Minn. 485, 35 N. W. 273; Crocker v. McGregor, 76 Me. 282; Bemis v. Temple, 162 Mass. 342, 38 N. E. 970.
We have examined all the other assignments of error, and find no reason for interfering with the order of the trial court, and it is affirmed.
Order affirmed.