Nuisance. Negligence. Railroad. In an action against a railroad company for personal injuries caused by the horse of the plaintiff running away when frightened by a number of mail bags allowed by the defendant to lie on a pile of snow in the highway near the travelled path, there was evidence that the plaintiff was in the exercise of due care and that the horse he was driving was gentle and well broken, that the mail bags were placed on a pile of snow about six feet from the railroad tracks at a grade crossing of the highway and were three or four feet from the sleigh track or travelled path of the highway, that the accident happened about seven o'clock in the morning, that the mail bags had arrived at twenty-five minutes before that hour and were during that time, and thereafter until their delivery at the post office, in the custody and under the control of the defendant. Held, that there was evidence upon which a jury might find that the mail bags were piled up in such a manner and in such proximity to the travelled part of the highway as to be likely to frighten horses, ordinarily gentle and well broken, while travelling upon the way, and thus to constitute a menace to public travel, and also might find that the defendant, knowing through its servants the position of the bags, negligently suffered them to lie there a longer time than reasonably was necessary and thereby to become a nuisance, and that the case should have been submitted to the jury.
HAMMOND, J.
Upon the evidence a jury might find that the mail bags were piled up in such a manner and in such proximity to the travelled part of the highway as to be likely to frighten horses, ordinarily gentle and well broken, while travelling upon the way, and thus to constitute a menace to public travel; and they might further find (although upon this point the case is close) that the defendant, knowing through its servants the nature of the obstruction, negligently suffered the bags to lie in that position a longer time than was reasonably necessary and that thereby the bags became a nuisance. There was also evidence of the due care of the plaintiff, and that the horse was ordinarily gentle and well broken. The case therefore should have been submitted to the jury. Bemis v. Temple, 162 Mass. 342, and cases therein cited. Lynn v. Hooper, 93 Maine, 46, and cases there cited.
At the argument before us it was stated by the counsel for the defendant that the place where the bags lay was also within the limits of the railroad location, but since that does not appear on the record and the plaintiff did not agree that the case should be treated by us as though that statement were true, we have not considered what difference, if any, in the law of the case would be made by such a fact.
Exceptions sustained.