Macomber v. Nichols. MACOMBER V. NICHOLS. (34 Mich. 212.) -steam engine is not means of locomotion - negli gence. Plaintiff, while driving along a highway, was injured by reason of his horse taking fright at an engine mounted on wheels which defendant was moving along the same highway by means of steam power. In an action for damages the court charged the jury that" a party placing upon the highway any vehicle unusual, and calculated from its appearance and mode of locomotion to frighten horses of ordinary gentleness, is liable for all damages resulting therefrom." Held, error. The users of horses and similar animals upon highways have no rights superior to the users of other means of locomotion; and if the use of the one result in injury to the user of the other, the right of action will depend on the question of negligence, which is to be determined by the jury. A steam engine as a means of locomotion in a highway is not necessarily a nuisance. (See note, p. 528.) A° CTION on the case to recover damages occasioned to the plaintiff through the alleged wrongful act of defendant. The opinion states the case. T. G. Pray, for plaintiff in error, cited 14 Gray, 242; 35 N. H. 257; 7 Barb. 508; 13 id. 658; Redf. on Railw. 520; 28 Mich. 32; 1 Allen, 190. May, Buck & Fraser, for defendant in error, cited Congreve v. Smith, 18 N. Y. 79; Conklin v. Thompson, 29 Barb. 218; People v. Cunningham, 1 Den. 524; Bartlett v. Hooksett, 48 N. H. 18; Knight V. Goodyear Co., 38 Conn. 438; Ayer v. Norwich, 39 id. 376; Young v. New Haven, id. 435; Foshay v. Glen Haven, 25 Wis. 288; Morse v. Richmond, 41 Vt. 435; Pa. R. R. v. Barnett, 29 Penn. St. 259; Lake v. Milliken, 62 Me. 240; Darling v. Westmoreland, 52 N. H. 401; Mahoney v. R. R. Co., 104 Mass. 73; Thomas v. Telegraph Co., 100 id. 157; Baker v. Portland, 58 Me. 199. COOLEY, C. J. This is an action on the case, in which Nichols sought to recover for an injury occasioned by his horse taking fright as he was driving along the public highway near Battle Creek, about 9 o'clock in the evening of September 9, 1874. The Macomber v Nichols. fright was caused by an engine mounted on wheels, which the defendant was moving along the same highway by means of the steam power by which it was operated. The engine was used mainly for threshing, and was moved from place to place for that purpose. The traveled part of the highway, at the place of the accident, was about thirty feet in width, and Macomber gave evidence tending to show that he was moving on the extreme right of this traveled way, and that he shut off steam and stopped the engine when the horse was seen approaching. Each party claimed to be free from negligence himself, and charged negligence upon the other. The following instructions, among others, were given to the jury at the request of Nichols: "1. If you find that about the 9th day of September last, the plaintiff was driving a well-broken and gentle horse in the public street or highway, in Battle Creek, in this county, that the defendant, by running a steam engine along said highway, caused plaintiff's horse to run away, and that plaintiff was thereby injured, either in person or property, and that such steam engine was well calculated to frighten horses of ordinary gentleness, then the plain tiff is entitled to recover. "2. The right to travel in a public highway is a right which is common to all, and no person has the right to impede or render dangerous the travel of the highway by any other person. "3. A party placing upon the highway any vehicle unusual and calculated from its appearance and mode of locomotion to frighten horses of ordinary gentleness, is liable for all damages resulting therefrom. "4. It is no defense to this suit that the defendant was using the steam engine in the transaction of his lawful and legitimate business, if his use of the highway in such business rendered the highway dangerous for others to travel. "5. The defendant had no right to run his steam engine on the public street or highway if such engine was calculated to frighten horses of ordinary gentleness.' Other instructions of similar import were given, but the foregoing are all that need be stated to make clear the view which was taken by the circuit judge of the main point in controversy. It is hardly probable that when the circuit judge told the jury that no person has a right to impede or render dangerous the travel of the highway by any other person, he intended them to under Macomber v. Nichols. Almost stand this language literally and without qualification. any proper use of a highway may under some circumstances impede the use by another, and possibly render it dangerous. The appearance of any unusual object in the streets may have some tendency to add to the dangers of travel by means of horses or other animals, and there is always more or less danger that a high spirited horse, or indeed any other horse, may become unmanageable, and people who are using the highway be exposed to risks in consequence. But it does not follow that the driver of such a horse is responsible for the consequences because of his bringing him into the street impeding or rendering dangerous the travel by others. The question is one of reasonable use and reasonable care, and if these are observed, he is not chargeable. Probably the circuit judge did not intend to be understood as going beyond the requirement of reasonable care and caution on the part of all persons making use of the public ways; and this instruction, if it stood alone, would not have been likely to mislead. But the instruction that any one placing upon the highway a vehicle unusual, and calculated from its appearance and mode of locomotion to frighten horses of ordinary gentleness, is liable for all damages resulting therefrom, is not only erroneous, but it could not fail to mislead. It was an instruction, in substance, that the placing of such a vehicle in the highway is always, and under all circumstances, an illegal act; a wrong in itself, for which an action will lie on behalf of any one who may chance to be injured in consequence. Injury alone will never support an action on the case; there must be a concurrence of injury and wrong. If a man does an act that is not unlawful in itself he cannot be held responsible for any resulting injury, unless he does it at a time or in a manner or under circumstances which render him chargeable with a want of proper regard for the rights of others. In such a case the negligence imputable to him constitutes the wrong, and he is accountable to persons injured, not because damage has resulted from his doing the act, but because its being done negligently or without due care has resulted in injury. If the act was not wrongful in itself, the wrong must necessarily be sought for in the time or manner or circumstances under which it was performed, and injury does not prove the wrong, but only makes out the case for redress after the wrong is established. Macomber v. Nichols. Persons making use of horses as the means of travel or traffic by the highways have no rights therein superior to those who make use of the ways in other modes. It is true that locomotion upo the public roads has hitherto been chiefly by means of horses and similar animals, but persons using them have no prescriptive rights, and are entitled only to the same reasonable use of the ways which they must accord to all others. Improved methods of locomotion are perfectly admissible, if any shall be discovered, and they cannot be excluded from the existing public roads, provided their use is consistent with the present methods. A highway is a public way for the use of the public in general, for passage and traffic, without distinction. Starr v. C. & A. Railroad Co., 4 Zabr. 592. The restrictions upon its use are only such as are calculated to secure to the general public the largest practicable benefit from the enjoyment of the easement, and the inconveniences must be submitted to when they are only such as are incident to a reasonable use under impartial regulations. When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods; and it cannot be assumed that these will be the same from age to age, or that new means of making the way useful must be excluded merely because their introduction may tend to the inconvenience or even to the injury of those who continue to use the road after the same manner as formerly. A highway established for the general benefit of passage and traffic must admit of new methods of use whenever it is found that the general benefit requires them; and if the law should preclude the adaptation of the use to the new methods, it would defeat, in greater or less degree, the purposes for which highways are established. It is not long since that the great highways by water were supposed to be of such transcendent importance as to entitle those who made use of them to superior rights over those making use of other highways which might intersect them. Accordingly bridges over navigable waters, when permitted at all, were required to be so constructed as to secure to vessels an uninterrupted passage, and the travel and traffic by land was compelled to await the con venience of travel and traffic by water. But this rule was never inflexible; it was a rule that must yield to circumstances; and it was never a matter of course that the master of a vessel was entitled to a remedy as for a legal injury when the convenience of one making use of a bridge was preferred to his. The case was one in Macomber v. Nichols. which rights must be harmonized, and unavoidable inconveniences to one party or the other must be submitted to as something inseparable from any employment of the powers of government to provide or regulate the channels for travel and commerce. There may be, in any case in which a highway by land intersects a highway by water, questions of difficulty as to whether, in view of all the circumstances, the one or the other is of the greater importance, and whether the general public would be better accommodated by compelling those making use of the one to submit to temporary inconvenience for the accommodation of those passing or moving property by the other; or, on the other hand, by recognizing in the former such paramount rights as are not to be narrowed or encroached upon by any rights possessed by the latter. Over unimportant streams a bridge may do far more to accommodate the public than the navigable privilege; and the unreasonableness of a refusal to recognize the fact when legal rights are found to depend upon it, is very manifest. The paramount rights which have been asserted on behalf of vessel owners as against railroad companies have been very distinctly denied, the court holding that they must submit to any incidental inconvenience that may be inseparable from allowing to the public the benefit of improved locomotion by land. Works v. Junction R. R., 5 McLean, 425, 438; Spooner v. Mc Connell, 1 id. 337, 379; Jolly v. Terre Haute Bridge Co., 6 id. 237, 242; Miss. & Mo. R. R. Co. v. Ward, 2 Black. 485. It follows that a bridge over a navigable stream is not of necessity a nuisance; it may or may not be such, according to the circumstances; and the vessel owner who brings his suit for an injury occasioned by it must show the circumstances wnich make the injury fairly chargeable to some one as a wrong. But the bringing of an unsightly object into the common highway is no more of a wrong because of its tendency to frighten horses of ordinary gentleness, than is the construction of a bridge over a river a wrong, because of its tendency to delay vessels. The one may be a wrong, under some circumstances, and so may the other; but it is equally true that both may be proper and lawful under other circumstances. It would be difficult to pass through the streets of our large towns without encountering objects moving along them which are well calculated to frighten horses of ordinary gentleness until they become accustomed to them; but which nevertheless are used and moved about for proper and lawful |