180 Mass. 119 | Mass. | 1901
This is an action for injuries caused by the plaintiff’s horse taking fright at an electric car covered with white canvas and resting on a flat car which stood on the defendant’s track near the highway. At the trial the presiding judge took the case from the jury on the ground that at the r time of the accident the car was in charge of a street railway company to' which it was to be delivered, and that its conduct was the proximate cause of the injury. The plaintiff excepted.
The street railway company had agreed with the defendant to unload the car at this point in order to move it across the street to the street railway car barn. To that end it had to take down the defendant’s fence between the railroad tracks and the highway, and this was expected by the defendant. The fence was about eight feet high and while it stood partially screened the car from the street. At the time of the accident it had been taken down and the street railway company’s men were at work preparing to unload the car.
If the horse’s fright was due to the car’s being covered with white canvas, although it seems to have been fastened tightly so as not to flap, that was a transitory condition of the car which could have been changed by the street railway company in five minutes after ,it took charge, if it had seen fit. Under such circumstances, if any one is liable it is the person in control. Ho doubt a landowner may be answerable for a nuisance on-his land, notwithstanding the fact that it is put there by some one else or is under another’s command. Rockport v. Rockport Granite Co. 177 Mass. 246. But not every transitory source of danger is within this principle. 177 Mass. 255. A certain degree of permanence is part of the conception of a nuisance. Commonwealth v. Patterson, 138 Mass. 498, 500. Commonwealth v. Hayes, 150 Mass. 506, 508. Reedie v. London & North Western Railway, 4 Exch. 244, 257.
But we need not stop here. If the cause of the fright was the car, irrespective of its covering, and if we suppose that any one could be held liable for that, still the defendant cannot be held. All the conditions were transitory. All were in the control of the street railway company. It would be absurd to say that the unloading of the car at the place contemplated by the defendant
In putting our decision upon the ground on which we have placed it, we do not wish to be taken to intimate that if the plaintiff brings another action against the street railway company he can succeed. Suppose it to be admitted that the car was an object likely to frighten horses, the question remains whether having it where it was and as it was upon the defendant’s land was a legal wrong to the plaintiff. As in many cases, perhaps it might be said in all, two principles or social desiderata present themselves, each of which it would be desirable to carry out but for the other, but which at this point come into conflict. It is desirable that as far as possible people should be able to drive in the streets without their horses being frightened. It also is desirable that the owners of land should be free to make profitable and otherwise innocent use of it. More specifically, it is desirable that a railroad company should be free to use its tracks in any otherwise lawful way for the carriage, incidental keeping and final delivery of any lawful freight. A line has to be drawn to separate the domains of the irreconcilable desires. Such a line cannot be drawn in general terms. We assume for the purposes of the argument that some uses of land might be imagined which would be held unlawful solely because of their tendency to frighten horses. Brown v. Eastern & Midlands
In view of our decision the question of evidence becomes immaterial.
Exceptions overruled.