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dent was occasioned by a snow-storm of unusual severity, and that the line was sufficient for storms reasonably expected; and the charge that defendant was not bound so to make or manage its line as to guard against storms of unusual severity, the occurrence of which could not be reasonably expected, which the lower court refused to give, was affirmed as correct.1

ILLUSTRATIONS.-Telephone-wires erected by a company acting under a license to erect and maintain wires became encumbered with ice while the fire department were engaged in putting out a fire, and fell into the street, where plaintiff, while in the exercise of due care, stumbled over them and was injured. Held, that if the company failed to remove the wires within a reasonable time after notice of their fall, it was liable: Nichols v. Minneapolis, 33 Minn. 430; 53 Am. Rep. 56.

§ 1163. Objects Frightening Horses.-A person who negligently or unlawfully places or leaves in the highway an object which, from its appearance, is likely to frighten a horse of ordinary training and docility is liable to a traveler for any damage which is the proximate result of his horse taking fright at such object. The plaintiff has recovered damages where the objects frightening the horse were the following: A pile of buffalo-hides on the defendant's own land;3 the beating of a drum in the highway;1 a dog barking at the horse; a derrick employed by a railroad in handling freight; tubing and other machinery being transported for the use of a water-works; a steamwhistle in a mill; a pile of stones collected in the high

1 Ward v. Tel. Co., 71 N. Y. 81; 27 Lovell, 12 R. I. 166; 34 Am. Rep. Am. Rep. 10. 628.

'Clinton v. Howard, 42 Conn. 294; Jones v. R. R. Co., 107 Mass. 261; Judd r. Fargo, 107 Mass. 264; Klipper . Coffey, 44 Md. 117; Watkins v. Reddin, 2 Fost. & F. 629; Hill v. New River Co., 9 Best & S. 303; Flower v. Adam, 2 Taunt. 314; Lake v. Millikin, 62 Me. 240; 16 Am. Rep. 456; Harris . Mobbs, 27 Week. Rep. 154; House . Metcalf, 27 Conn. 631; Bennett v.

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way; a jet of water spouting up out of the ground in a public highway, about four feet high; a traction steamengine driven along the highway at the rate of six miles an hour. But not a pile of building materials placed of necessity on the side of the highway. A railroad company is not liable for leaving its cars standing on a sidetrack, loaded with slabs of wood in the usual way, and for leaving a hand-car bottom side up, according to the usual custom, although it may thereby produce a "scarecrow" with "a horrid and frightful appearance," frightening a traveler's horse and injuring the traveler. One who carelessly sprinkles a pavement where wild horses are hitched, and so frightens them, and causes them to run down the street and injure a pedestrian, is guilty of negligence and liable for the injury. The question frequently is, Has the defendant impeded the highway an unreasonable length of time?"

ILLUSTRATIONS.-A land-owner engaged in whitewashing a fence skirting a highway running through his land used a small barrel mounted on wheels. This, with a shovel projecting slightly above the top, was left at the side of the highway over Sunday. The plaintiff's horse took fright at it and caused personal injuries to him. Held, that the defendant was not liable unless the vehicle was so unusual and extraordinary as to have a natural tendency to frighten horses of ordinary gentleness and training, and was left by the roadside an unreasonable length of time: Piollet v. Simmers, 106 Pa. St. 95; 51 Am. Rep. 496. Plaintiff's minor daughter, with a suitable horse and vehicle, and in the exercise of ordinary care, was traveling along a public highway, when the horse became frightened at the appearance of the defendant's hog, which was permitted to be in the highway without a keeper, and occasioned an injury to the daughter and the vehicle. Held, that the defendant was liable for the injury, whether he knew or not that the hog was there at the time: Jewett v. Gage, 55 Me. 538; 92 Am. Dec. 615.

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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: Macomber v. Nichols, 34 Mich. 212; 22 Am. Rep. 522. A turnpike company, exacting toll for public travel on its road, negligently suffered the same to become, and to its knowledge to remain a long time, out of repair, by means of a large hole near the center of the track. The plaintiff riding on horseback on said road, having no knowledge of the defect, and being in no way negligent, her horse became frightened by the hole, shied, threw her to the ground, and injured her. Held, that she might recover damages from the company therefor without alleging that the horse came in contact with the hole, or that there was not room to pass on either side: Brooksville etc. Turnpike Co. v. Pumphrey, 59 Ind. 78; 26 Am. Rep. 76.

§ 1164. Permissible Obstructions in Streets-Building Materials. An adjoining owner may place building materials on a portion of the highway and allow them to remain there a reasonable length of time, where it is necessary to do so in order to enable him to erect a building on the line of the highway. The streets of a town may be used for the temporary deposit of goods in their transit to the storehouse or for wharfage, regard being paid to their evident object and purpose.2 The owner of a warehouse located on a street through which the railroad runs has the right to unload goods from a car standing on the track, by means of skids extending from the car to the warehouse, provided there is ample. room to accommodate travel on the other side of the street, and the time occupied in unloading is reasonably short. So the right of a railroad corporation to stop its cars in the street and unload them, in a reasonable time hausen v. Pond, 36 Wis. 29; O’Linda v. Lothrop, 21 Pick. 292, 297.

1

Mallory v. Griffey, 85 Pa. St. 275; Palmer . Silverthorn, 32 Pa. St. 65; People v. Cunningham, 1 Denio, 524; 43 Am. Dec. 709; Wood v. Mears, 12 Ind. 515; 74 Am. Dec. 222; Hund

2 Haight v. Keokuk, 4 Iowa, 199; Jochem v. Robinson, 72 Wis. 199.

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and manner, is incidental to the right of transit.1 It is not negligence per se for the driver of a wagon to back it across the sikewalk in order to unload sacks of salt into a building. Whether a particular obstruction of a highway is reasonable or not is a question of fact.3 Where

1 Mathews v. Kelsey, 58 Me. 56; 4 Am. Rep. 248.

2 Hand v. Klinker, 54 N. Y. Sup. Ct. 433.

ure.

3 Attorney-General v. Sheffield Gas Co., 19 Eng. L. & Eq., 639; Graves v. Shattuck, 35 N. H. 257; 69 Am. Dec. 536; Hundhausen v. Bond, 36 Wis. 29; Stratton v. Staples, 59 Me. 94; Com. v. Passmore, 1 Serg. & R. 219, the court saying: "It is true that necessity justifies actions which would otherwise be nuisances. It is true, also, that this necessity need not be absolute; it is enough if it be reasonable. No man has a right to throw wood and stones into the street at his pleasBut inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried to his 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. On the same principle, a merchant may have his goods placed in the street for the purpose of removing them to his store in a reasonable time. But he has no right to keep them in the street for the purpose of selling them there, because there is no necessity for it." In a leading English case (Attorney-General v. Sheffield Gas Co., 19 Eng. L. & Eq.), the chancellor said: "If I were to station a cart in a street, opposite my door, obstructing the public highway, I might be guilty of a nuisance, for aught I know, and I might be liable to be indicted; but it would be a sufficient answer to say that the cart was there only a reasonable time, and for a lawful purpose. If it is used in the way such things are ordinarily used, it cannot be a nuisance so to use it. The public highway is for the convenience of mankind, and so to use it cannot be a nuisance. One of the uses is, that a person traveling with a cart or carriage may draw

up at a particular door and get down, according to his lawful occupation. So, again, if I have a cart come to my house with five or six tons of coal, of course it would be some time obstructing the public highway; but it is difficult to maintain that in an ordinary street that would be a nuisance. All these cases of nuisance or no nuisance, arising from particular acts, must, from the nature of things, be governed by particular circumstances. Now, if a carriage were to drive up in Belgrave Square and stand half a day at the door of a house, waiting for some person calling there, I do not think that that could be made out to be a nuisance. It may be said, 'You staid there an unreasonable time.' It may be so, but it would be difficult indeed to make out that that was a nuisance. But suppose the same thing happened in the street that runs from Covent Garden to St. Martin's Lane; a man calling there and saying, 'I mean to have a chat for half an hour,' I do not know that that would not be a nuisance. You must be guided by the particular circumstances; you must look at the particular place or object that the parties have in view. I take it, that all these questions are of this nature: Are you using the matter which is the subject-matter of inquiry in a reasonable way? and are those the uses for which it was contemplated!" "Very much depends upon the locality, the width of the highway, and the time it may be obstructed by the alleged nuisance. What would be a reasonably free passage for the public, what would be a reasonably safe and convenient road for the accommodation of the public travel, in a remote, sparsely populated rural district, might and generally would not be so in a compact city or a large and populous village. So, too, in a village or city, what would be no obstruction in a broad street little frequented might be very objectionable, if not an abso

the use of the highway is regulated by ordinance, one following the directions of the ordinance is not liable for any damages caused by the obstruction,' while one violating the ordinance will be.2 Persons making use of a highway for games or sports dangerous to travelers are liable for all damages occasioned thereby. They are liable as joint trespassers for an injury done by one of them in accidentally striking a traveler with the ball in the course of the game, where the highway is so narrow as to make the playing of such games there dangerous to travelers.3

ILLUSTRATIONS.-Defendants, occupants of a store, placed skids reaching from the door across the sidewalk to a vehicle in the street for the purpose of loading kegs of merchandise containing about five gallons each, and each weighing less than fifty pounds. The plaintiff, lawfully walking upon the sidewalk, in trying to cross the skids, fell and was injured. Held, that the questions of negligence and contributory negligence were for the jury, and a demurrer was erroneously sustained: Jochem v. Robinson, 66 Wis. 638; 57 Am. Rep. 298. Defendant, for the purpose of removing merchandise from his store in the city of New York, laid skids from a truck across the sidewalk to the steps. They had been there a few minutes, when the plaintiff, coming along the sidewalk, attempted to pass around the skids by the steps, and slipped upon the steps and was injured. Held, that defendant was not bound to see that the steps were in an absolutely safe condition for travel, and that the plaintiff was not entitled to recover: Welsh v. Wilson, 101 N. Y. 254; 54 Am. Rep. 698.*

lute nuisance, in a narrow business thoroughfare": Graves v. Shattuck, 35 N. H. 257; 69 Am. Dec. 536.

1 Wood v. Mears, 12 Ind. 515. 2 Weick v. Lander, 75 Ill. 93. 3 Vosburgh . Moak, 1 Cush. 453; 48 Am. Dec. 613.

Earl, J., saying: "The defendant had the right to place the skids across the sidewalk temporarily, for the purpose of removing the cases of merchandise. Every one doing business along a street in a populous city must have such a right, to be exercised in a reasonable manner, so as not to unnecessarily encumber and obstruct the sidewalk. When the plaintiff found this obstruction in her pathway she had the option either to wait a couple

of minutes or to cross the street and pass upon the other sidewalk, or to pass around the truck in the street, or to take the way she selected. The defendant was under no obligation to furnish her a safe passage-way around the obstruction: People v. Cunningham, 1 Denio, 530; Commonwealth v. Passmore, 1 Serg. & R. 219; People v. Horton, 64 N. Y. 610. The defendant owed the plaintiff no duty to see that its steps were in an absolutely safe condition for travel, and it does not appear that they were dangerous under such circumstances as to charge him with carelessness, even if that would have been sufficient to impose any liability upon him in this case."

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