Whether a person was in the lawful use of a highway as a "traveller," and whether he was in the exercise of due care at the time of an injury to his horse, are questions for the jury.
CLARK, J.
If the plaintiff's horse was the horse of a "traveller" when it went on to the defendants' railroad it was rightfully in the highway; and if it was rightfully in the highway the defendants were bound to fence against it. Giles v. Boston Maine Railroad, 55 N.H. 552; Mayberry v. Concord Railroad, 47 N.H. 391; Chapin v. Sullivan Railroad, 39 N.H. 564; Cornwall v. Sullivan Railroad, 28 N.H. 161; Towns v. Cheshire Railroad, 21 N.H. 363; Woolson v. Northern Railroad, 19 N.H. 267. Whether the plaintiff's horse was rightfully in the highway, and whether the plaintiff was in the exercise of due care at the time the accident happened, were questions for the jury. Elliott v. Lisbon, 57 N.H. 27; Varney v. Manchester, 58 N.H. 430; Cummings v. Center Harbor, 57 N.H. 17; Dumas v. Hampton, 58 N.H. 134; Hardy v. Keene, 52 N.H. 370; Baldwin v. G. T. Co., 40 Conn. 238; Ring v. Cohoes, 77 N.Y. 83. The court cannot say there was no evidence upon these questions competent to be submitted to the jury, and the exceptions must be sustained and the
Nonsuit set aside.
STANLEY, J., did not sit: the others concurred.