Way, Defects in highway. Negligence, In use of highway, Proximate cause, Plaintiff's due care.
In an action against a city under R.L.c. 51, § 18, for personal injuries alleged to have been sustained by reason of a defect in a highway of the defendant, it appeared that the plaintiff in the exercise of due care was driving four horses attached to a heavily loaded wagon, when the horses were frightened by a portable engine maintained in a temporary shelter on the highway for use in the erection of a building, which was being operated negligently by the engineer of the building contractor, that the horses became uncontrollable and turned one of the wheels of the wagon into an open trench in the highway, so that the plaintiff was thrown from his seat and sustained the injuries complained of. It further appeared that the trench had been dug by the water department of the defendant, and that, after the defendant had received reasonable notice of its dangerous character, it had been left wholly unguarded without any precautions being taken to warn travellers of the danger. Held, that the action could not be maintained because the defect in the highway was not the sole cause of the plaintiff's injuries.
A contractor, who is granted a permit by the proper officers of a city to maintain and operate a portable engine in a temporary shelter upon a highway of the city, which is not closed to public travel, must use reasonable care not to operate the engine in a manner that is likely to frighten horses when being driven near it by travellers on the highway.
In an action against a contractor for personal injuries alleged to have been sustained by reason of the negligence of an engineer of the defendant in suddenly starting a portable engine maintained under a permit from a city in a temporary shelter on a highway of the city, at the moment when the horses driven by the plaintiff were passing near it between the temporary shelter and an open trench, thus causing the horses to become uncontrollable and to turn one of the wheels of the wagon into the trench so that the plaintiff was thrown from his seat and injured, it is no defense that the accident would not have happened if the trench in the highway had not been left by the city open and unguarded.
The driver of four horses attached to a heavily loaded wagon, who in passing through a street of a city sees ahead of him on his right an open trench unguarded and on his left a temporary shelter in which a portable engine is maintained on a portion of the highway for use in the erection of a building, if his horses have not shown signs of fright and there is room in the street for his team to pass safely between the trench and the temporary shelter of the engine, and he has no reason to anticipate that the engineer in charge of the engine will start it up suddenly at the moment that his horses are passing near it, cannot be said as matter of law to be negligent in attempting to drive between the trench and the engine, although while he is doing so the sudden starting of the engine frightens the horses and makes them uncontrollable, so that they turn a wheel of the wagon into the trench and he is thrown from his seat and injured.
BRALEY, J.
If it became necessary for the water department of the defendant city either to lay or to repair a water pipe in the public way over which the plaintiff was driving when injured, the jury could find that to open a trench of the dimensions stated, without taking any precautions to warn travellers of the danger, rendered the street defective and unsafe. Norwood v. Somerville, 159 Mass. 105. Torphy v. Fall River, 188 Mass. 310, 313. R.L.c. 51, § 1.
To maintain the action, the plaintiff under R.L.c. 51, § 18, must prove that the defect was the sole cause of his injuries. The city had authorized the defendant company to erect a temporary engine house on a portion of the street nearly opposite the excavation, which narrowed the roadway, and as the plaintiff's team was passing the engineer started the engine. The escaping steam, apparently discharged into the street, so frightened the horses that they began to run, and while uncontrollable the wagon plunged into the trench, when the plaintiff was thrown from his seat to the ground. If the loss of control could have been found to have been only momentary, and instantly would have been regained if the wagon had not come in contact with the defect, the plaintiff would have been entitled to recover, as the city does not contend that he was careless or that it did not have notice of the defect. Babson v. Rockport, 101 Mass. 93. But, it having been undisputed that the horses were beyond his control when the accident happened and but for their fright the wagon would not have fallen into the trench, the verdict for this defendant was rightly ordered. Titus v. Northbridge, 97 Mass. 258. Horton v. Taunton, 97 Mass. 266. Fogg v. Nahant, 98 Mass. 578; S.C. 106 Mass. 278. Lynn Gas Electric Co. v. Meriden Fire Ins. Co. 158 Mass. 570, 576. Feeley v. Melrose, 205 Mass. 329.
The defendant company, outside of the portion occupied by its engine house under the permit, had no exclusive use of the street, which had not been closed to public travel. If permitted for its own convenience and benefit to maintain and operate the engine, yet it knew or could be found to have known that the street was being concurrently used by the public. It is common knowledge that horses are likely to become restive and perhaps unmanageable from fright caused by the hissing sound of emitted steam, and the defendant was required in the operation of the engine to use reasonable care not to frighten passing teams. It was for the jury and not for the court to determine, whether the defendant's engineer, who seems to have had convenient facilities for observation, acted with reasonable care in starting the engine before he ascertained whether a team was passing in such proximity that its operation might imperil the safety of travellers. If the jury found that the engineer was negligent, the defendant was responsible for the accident, which as we have said would not have happened if the horses had not been so frightened as to pass from the plaintiff's control. Butman v. Newton, 179 Mass. 1.
The plaintiff, whose horses previously had not shown signs of fright, undoubtedly was aware that the trench was on his right, with the engine house on his left, but he also knew that the remaining portion of the street was sufficient in width for his team to pass safely, under visible conditions, and he had no reason to anticipate the defendant's negligence. It could not be ruled as matter of law that he acted carelessly. Stoliker v. Boston, 204 Mass. 522, 534, and cases cited.
In accordance with the terms of the report, judgment for the defendant is to be entered on the verdict in the first case, but in the second case the plaintiff is to have judgment for the sum of $1,500.
So ordered.