Schillinger v. Town of Verona

96 Wis. 456 | Wis. | 1897

Winslow, J.

In this case we are clearly of opinion that judgment should have been ordered for the defendant upon the verdict. By the verdict the jury found that the horses were not frightened at the hole in the bridge, but that the horses became unmanageable before the buggy was backed off the approach, and became more than momentarily uncontrollable before the plaintiff was tipped out of the buggy. The backing off from the approach and the tipping^over of the buggy were practically simultaneous events, as shown by all the evidence on the subject. The case, then, is this: A géntle horse becomes more than momentarily uncontrollable upon the highway. His fright is not occasioned by any defect in the highway; and while in that condition he comes in contact with a defect in the highway, and his owner and driver suffers an injury. Gan there be a recovery for such injury against the town?

There is unquestionably a direct conflict in the decisions on this question. The Massachusetts doctrine is that there can be no recovery under such circumstances. Higgins v. Boston, 148 Mass. 484, and cases cited. On the other hand, the New York doctrine seems to be that the town mmj be liable under such circumstances, provided the injury would not have been sustained but for the defect. Ring v. Cohoes, 77 N. Y. 83. There are, perhaps, a greater number of courts which follow the New York rule than the Massachusetts rule. See Elliott, Roads & S. 448, 449, and notes; Beach, Contrib. Neg. (2d ed.), § 245. We had supposed that there was no question but that this court had definitely adopted the Massachusetts rule. The intimation to that effect contained in Houfe v. Fulton, 29 Wis. 296, was followed by. the direct adjudication of the principle in Jackson v. Bellevieu, 30 Wis. 250, which case has never been overruled, but has, on the contrary, been cited with approval in a number of cases since that time, the last one being the case of Bishop v. Belle City St. R. Co. 92 Wis. 139, where the rule is expressly stated and the authorities cited. It was impliedly, if not expressly, recognized in the opinion of the court upon the first appeal in the present case. 85 Wis. 599. We regard the principle as so firmly fixed in the jurisprudence of the state as not to admit of change, even were we disposed to regard it as in any respect undesirable as an original proposition.

Authorities as to the effect of fright of a horse on the right to recover for injuries from a defective highway are collected in a note to Schaeffer v. Jackson Township (150 Pa. St. 145), in 18 L. R. A. 100.— Rep.

The fact being found, without error, that the horse was-in effect'a runaway horse at the time of the accident, and that his fright was not occasioned by any defect in the highway, the town was entitled to judgment upon the verdict.

By the Court.— Judgment reversed, and action remanded with directions to enter judgment for the defendant.