Titcomb v. Fitchburg Railroad , 94 Mass. 254 ( 1866 )

Dewey, J.^*

It is found by the report of these cases that the plaintiffs were driving at a proper rate of speed, with due care and with a suitable horse and vehicle, at the time they received the injuries for which they claimed damages. It is further proved that the fence was old and rotten where the horse went through, and was not in a proper state of repair.

The first inquiry is, whether the defendants were bound to maintain and keep in proper repair a fence or other barrier at the place where the horse went through the same. The duty, if it existed, arose under Rev. Sts. c. 39, § 72, requiring that “ every railroad corporation shall maintain and keep in repair all bridges with their abutments which such corporation shall construct over or under any turnpike road, canal, highway or other way.”

To some extent certainly the highway at the end of the bridge structure may be considered as connected with the bridge. The English law seems to extend it three hundred feet from the bridge. We have no such rule, but the approaches to the bridge must to some extent be regarded as appended to it, and the responsibility as to their being kept in a safe and proper state is devolved upon the party required to construct and maintain the bridge. Commonwealth v. Deerfield, 6 Allen, 449. Parker v. Boston & Maine Railroad, 3 Cush. 107.

We can have no doubt that the portion of the fence connected with the bridge where the horse passed through was an appendage to the bridge which the defendants were bound to maintain and keep in repair. The bridge with its abutments must at least be held co-extensive with the entire excavation made of the earth in crossing the highway, and is not to be limited to the exterior line of the stone wall and the plank structure resting on those walls.

It was objected at the argument, on the part of the defendants, that the court instructed the jury that the defendants were bound to maintain and keep in repair not only “the bridge proper- and the abutments, but all that part of the crossing which is between the bridge proper and the line of the location of the road.” Whether this instruction to its full extent might or might not be maintained upon the facts of the present case and the acts of the defendants in the manner of constructing this bridge and narrowing the road entering upon it, it is not necessary to determine, inasmuch as the uncontroverted facts show that the horse passed through that half of the fence which was nearest the abutment, and at a point very near the bridge, and where the liability to maintain a barrier did clearly exist, however it might be as to the liability of the defendants to continue the same to the line of the location of the road.

It is further contended that the defendants were not liable to the plaintiffs, although they had neglected the duty devolved upon them by law of maintaining a proper fence or other suitable barrier at the place where the injury was received, inasmuch as the horse was frightened and became unmanageable without any fault on the part of the defendants in the running of their cars. The court very fully and properly instructed the jury that the defendants had the right to operate their road and to cross public highways, and to run their trains with their usual and necessary incidents of noise and escaping steam, and if while exercising their rights the horse of a traveller should be frightened and the traveller injured, he would be without remedy. But while this is true where no negligence exists on their part as to their duties for the security of travellers on the public highway contiguous to their road, yet it by no means follows, if an injury to the traveller occasioned by the horse becoming frightened and unmanageable would have been prevented if the proper fence or barrier required by law to be maintained by them had existed, that the railroad company are not responsible. In their ordinary line of travel and running of their cars upon land duly taken and paid for, they are not require! to take any specific measures to guard against frightening horses, or other casualties that may be occasioned by the noise of the cars and escape of steam, and travellers on the highway must take care to avoid any exposure that might be occasioned thereby. But in crossing the highway and interfering with the ordinary use of another public easement, they had specific duties to perform, and among them that of making a proper fence or barrier at this place. So far as such a fence would be effectual to guard against injury from the frightening of a horse about to enter upon the bridge, by the approach of a train of cars passing under the bridge, the plaintiffs were entitled to that protection. Not that the defendants were bound to maintain a barrier that would in all cases stop the progress of a frightened horse about to enter upon the bridge, but they were bound to maintain and keep in repair a suitable and proper fence at this place; and if the discharge of this duty would have prevented the occurrence of the present injury, and the plaintiffs are shown to have been without fault on their part, the railroad company may properly be charged in the present actions.

The fact whether such a fence would have prevented the occurrence of the injury may be a difficult one for the jury to find, but the burden is on the plaintiffs to show this, and if they can establish it, the defendants may be held liable for the injury sustained. This is in conformity with the doctrine of this court as held in Palmer v. Andover, 2 Cush. 600.

The case of a horse being frightened is one of the cases of casualty which may and often does occur, and is entirely consistent with a reasonable degree of care and prudence on the part of the traveller. Such traveller has a right in case of such occurrence to the protection which such a fence as the law requires the railroad company to maintain would have given. If such a fence would have been unavailing, and the injury would still have occurred, the traveller cannot say his injury was occasioned by any neglect of the railroad company, and he must bear the loss ; but if otherwise, the liability attaches to the party bound to maintain the fence as an appendage to the bridge.

Judgments on the vet diets,

* Hoar, J., did not sit in this case.