Piollet v. Simmers.

as to their disposition, it would be negligence to expose it to view. In this we think there was error.

There is a certain right of property-owners, which we will discuss presently, to leave objects on or along a highway, in front of their premises, temporarily, and for special purposes, and where that right exists, it is of equal grade, before the law, with the right of travellers to journey on the highway. Hence in such cases the obligations of each class to the other are equal, and not superior, the one to the other. Each is bound to ordinary care toward the other, in the exercise of their respective rights, but not to care which is extraordinary. In the more particular application of this doctrine to a case like the present, we think the correct rule is, that a property-owner who has a lawful right to expose an object, on or along a public highway, within view of passing horses, for a temporary purpose, is bound only to take care that it shall not be calculated to frighten ordinarily gentle and well-trained horses. And this seems

to be the tenor of the authorities in the cases in which there has been a judicial expression on the subject. Thus in the case of Mallory v. Griffey, 85 Penn. St. 275, which was an action to recover damages resulting from the fright of a horse, occasioned by a large stone along the highway, our brother STERKETT said: "It was claimed that the stone was an object calculated to frighten an ordinarily quiet and well-trained horse, and that the defendant was chargeable with negligence in leaving it on the highway. This presented a question of fact which was properly submitted to the jury with the instruction that the plaintiffs could not recover unless they found, 'from the evidence that a stone or rock, such as was placed in, or near, the road by the defendant, was, in and of itself, an object calculated to frighten an ordinarily quiet and well-broken horse.""

In Morse v. Richmond, 41 Vt. 435, it was held, that a town is liable for such accidents by fright as are the natural result of its neglect to remove any object of frightful appearance, so remaining deposited on the margin as to render the whole road unsafe for travel with horses of ordinary gentleness. In Foshay v. Glen Haven, 25 Wis. 288; s. c., 3 Am. Rep. 73, the court said: We adopt upon

this subject the rule established by the Supreme Courts of Vermont, New Hampshire and Connecticut, that objects within the limits of a highway naturally calculated to frighten horses of ordinary gentleness may constitute such defect in the way as to render the town

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liable, even when so removed from the travelled path as to avoid all danger of collision."

In Ayer v. Norwich, 39 Conn. 376; s. c., 12 Am. Rep. 396, CARPENTER, J., said: "In conclusion we are satisfied that the law is and ought to be so that objects within the limits of a highway which in their nature are calculated to frighten horses of ordinary gentleness may be nuisances, which make the highway defective within the meaning of the statute."

In Card v. City of Ellsworth, 65 Me. 547; s. c,, 20 Am. Rep. 722, the court said: "How far, if at all, the court would be inclined to admit the doctrine adopted in this discussion beyond the facts now before us, we cannot now decide. But in no case like this can a liability of the town exist, unless the object of fright presents an appearance that would be likely to frighten ordinary horses, nor unless the appearance of the object is such that it should be expected by the town that it naturally might have that effect, nor unless the horse was at least an ordinarily kind, gentle and safe animal, and well broken for travelling upon our public roads." The rule is stated in the same way in the cases cited by the defendant in error. Thus in Bartlett v. Hooksett, 48 N. H. 18, SMITH, J., says: "But if objects are suffered to remain (except for the most temporary purposes), resting upon one spot, or confined within any particular space, within the highway, and are of such shape or character as to be manifestly likely to frighten horses of ordinary gentleness, injuries caused by the fright thus occasioned may properly be said to happen by reason of the obstruction or insufficiency of the highway, unless the person placing or continuing those objects upon the highway was in so doing, making such use of the high way as was under all the circumstances reasonable and proper." To the same effect are Young v. New Haven, 39 Conn. 435; Dimock v. Suffield, 30 Conn. 129.

It seems to us it would be difficult to state a rational rule on this subject unless it is accompanied with this limitation. For if persons are bound to guard against frightening skittish, vicious, timid, and easily frightened horses, it will not be possible to state any limit of precaution which will be a protection against liability. The reason is that there is nothing as to which it can be definitely said that such horses will not frighten. On this subject the language of our brother PAXSON, in the recent case of Pittsburgh Southern Railway Co. v. Taylor, 104 Penn. St. 306; s. c., 49 Am. Rep. 580, is particu

Piollet v. Simmers.

larly apposite. He said: "The frightening of a horse is a thing that cannot be anticipated and is governed by no known rules. In many instances a spirited road horse will pass in safety an obstruction that a quiet farm horse will scare at. A leaf, a piece of paper, a lady's shawl fluttering in the wind, a stone or stump by the wayside, will sometimes alarm even a quiet horse. I may mention, by way of illustration, that the severest fright I ever knew a horse to feel was caused by the sunlight shining in through the windows of a bridge upon the floor." If a farmer may not have a barrel of cider, a bag of potatoes, a horse power, a wheelbarrow or a wagon, standing on his own premises by the side of a highway, except at the risk of having his whole estate swept away in an action for damages occasioned by the fright of an unruly horse, the vocation of agriculture will become perilous indeed. These views lead us to the conclusion that the court below was in error in its treatment of this subject, and we therefore sustain the first, third, fifth, sixth, eleventh, twelfth, fourteenth and fifteenth assignments. We see no objection to allowing proof of specific cases of fright at this particular object, and therefore do not sustain the second assign

ment.

Another subject of complaint by the defendants is the restrained and limited manner of defining the defendants' rights adopted by the court, and their subordination, when stated, as rights of inferior grade to those of the travelling public, and therefore to those of the plaintiff. The defendants are farmers. They own a considerable body of land lying on both sides of the public road at the place where the accident happened. For some time before and after the accident they were engaged in whitewashing their fences, extending a considerable distance along the road. The road at this place was upwards of forty-five feet in width, the road-bed actually travelled being twenty-two feet wide. The distance from the track to the fence on the south side was thirteen and a half feet, and in this space there was a slope downwards of two and nine-tenths feet, a little steeper near the road than for the remainder of the distance. surface of the road and the slope was composed of small gravel. Next the fence was a raised foot-path, about four and a half feet wide, and next to the path was a ditch four feet wide, and fourtenths of a foot below the travelled track. In this ditch stood a small truck on wheels, about two and a half by three feet, the wheels being twelve to fourteen inches high, and on the truck was

The

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a small barrel about fifteen inches in diameter and two feet three inches high. A pole or stick projected above it, the height of which above the barrel is differently stated by the witnesses from a few inches to two or three feet, and a small piece of carpet covered the pole and barrel. The outside of the barrel was streaked with lime, and the barrel itself contained the lime with which the whitewashing was done. This is the object which, it is claimed for the plaintiff, caused the horse to frighten, and thereby produced his fall and death. It was moved along the road as the work progressed, and was left standing in the ditch from Saturday night to Monday morning, covering the Sunday when the accident occurred, partly filled with lime prepared for use.

The learned court did instruct the jury that the defendants had the right to use any part of the highway for the purpose of building and improving their fences, provided they did not interfere with the rights of travellers; and that if the lime tub was calculated to frighten horses, it would be negligence to use it, because all citizens had a right to pass without having their horses frightened by any obstruction placed on the highway. The learned judge also said that the public had a right to travel over every part of the highway; that every thing between the fences was highway, and the public had the right to use any part of it they saw fit. It seems to us this is not a sufficiently precise designation of the relative rights of the property-owners and the public. As we understand the law, there is an absolute right in a property-owner to use a portion of the public highway for certain purposes for a temporary period and in a reasonable manner, and this right may be exercised in derogation of the right of the travelling public. Thus in 2 Dill. Mun. Corp., § 581, the writer says: "We have heretofore shown that the primary purpose of a street is for passage and travel, and that unauthorized and illegal obstructions to its free use come within the legal notion of a nuisance. But it is not every obstruction, irrespective of its character or purpose, that is illegal, even although not sanctioned by any express legislative or municipal authority. On the contrary, the right of the public to the free and unobstructed use of a street or way is subject to reasonable and necessary limitations. The carriage and delivery of fuel, grain, goods, etc., are legitimate uses of a street, and may result in the temporary obstruction to the right of public transit. So the improvement of the street or public highway itself may occasion im

?

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And so of the

pediments to its uninterrupted use by the public. improvements of adjoining lots by digging cellars, by building, etc.; this may occasion a reasonable necessity for using the street or sidewalk for the deposit of material. Temporary obstructions of this kind are not invasions of the public easement, but simply incidents to, or limitations of it. They can be justified only when and only so long as they are reasonably necessary."

In the case of Commonwealth v. Passmore, 1 S. & R. 219, TILGHMAN, C. J., said: "No man has a right to throw wood or stones into the street at his pleasure. But inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried to the house, and it may lie there a reasonable time. So, because building is necessary, stones, bricks, lime, sand, and other materials may be placed in the street, provided it be done in the most convenient manner."

The foregoing case was an indictment for a nuisance, where the question was simply whether the obstruction in question was a nuisance; but the case of Palmer v. Silverthorn, 32 Penn. St. 65, was an action to recover damages for the broken leg of an ox which had wandered among a parcel of building materials, placed by the defendant in the highway in front of his premises while erecting a building. Here a practical question of liability for damages arose, and it was determined for the defendant, because although his materials were an obstruction to the street, they were lawfully there, and he was not responsible if he left sufficient room for the travel of the street. The case of Commonwealth v. Passmore was cited and approved, and a similar case from 1 Denio, 524, was quoted, in which the same doctrine was declared. THOMPSON, J., said the necessity of the case was probably the foundation of the rule, "but the practice has become a custom of such long standing that it is regarded as law, and the right will not be defeated by an investigation into the necessity of so doing in any particular case. It is a right to be exercised under responsibility for all injury arising from an unreasonable or negligent use of it." In Mallory v. Griffey, supra, which was an action for damages for an injury inflicted by a horse taking fright at a stone placed in the highway as a part of some building materials to be presently used, we affirmed the court below in charging that the defendant was not liable, although the horse took fright, merely because the stone was in the highway. Mr. Justice STERRETT said: "The jury were properly instructed