288 Mass. 93 | Mass. | 1934
The defendant was operating a motor vehicle on a State highway in Falmouth between the hours
Even though, as the defendant contends, he was not able in the fog to see the horse earlier and thus avoid hitting it, the finding that he was negligent was warranted. By reason of the speed at which he chose to operate his motor vehicle under such conditions as to visibility that no person, animal or object on the highway could be seen if more than seven feet ahead of him, the defendant could be found to have been lacking in the quantity and quality of care which the law required him then and there to furnish. Woodman v. Powers, 242 Mass. 219. Commonwealth v. Arone, 265 Mass. 128. Arnold v. Colbert, 273 Mass. 161. Durling v. Lamontain, 277 Mass. 517. Clark v. C. E. Fay Co. 281 Mass. 240. Sexton v. West Roxbury & Roslindale Street Railway, 188 Mass. 139. Not only did the acts of the defendant in fact cause damage to the plaintiff but the evidence warranted the finding that the defendant was legally responsible for that damage. The trial judge could find that the defendant should have anticipated that harm or damage to some one, of the same general character as that suffered by the plaintiff, was a reasonable and probable consequence of his acts. It is of no materiality that the particular damage sustained by the plaintiff could not have been foreseen. Ogden v. Aspinwall, 220 Mass. 100, 103, and cases cited. Sponatski’s Case, 220 Mass. 526, 530, 531. Burnham v. Boston & Maine Railroad, 227 Mass. 422, 426. Perlman v. Burrows, 270 Mass. 182.
A stray horse when upon a public highway without negligence on the part of its owner is not an outlaw nor, as against a traveller exercising a traveller’s rights to use the highway, is’ such an animal a trespasser] The~stihutes^ealing with
The defendant had the burden of proving that the horse was on the highway because of~
The trial judge found that the plaintiff wasnot negligent and the record before us justifies that finding. There was no evidence that the plaintiff turned his horse loose upon the highway or that he' knew the animal was there unattended.
It broke out of an enclosure where it had been left by the plaintiff. There was conflicting evidence as to the condition of the fence surrounding the premises where the horse was kept, but there was evidence from which the finding was warranted that it escaped by breaking through a wire fence four feet high and that it had never before escaped from that place/ it cannot be Held that the judge was obligeWto firfd that the defendant had sustained the burden of proving that the horse was on the highway through the plaintiff’s negligence.
By reason of what has heretofore been said, it is unnecessary to discusa in detail the defendant’s requests. We find no reversible error in the judge’s rulings thereon.
Order dismissing report affirmed.