Herrick v. Sullivan , 120 Mass. 576 ( 1876 )

Lord, J.

In construing this bill of exceptions, we do not consider ourselves at liberty to regard any of the facts relied upon as findings either of judge or jury; but rather as agreed or undisputed facts upon which the judge ruled as matter of law. In this view, we think the ruling of the presiding judge erroneous upon the question of due care on the part of the defendant’s servant. We see no evidence of a want of reasonable care as matter of law. • If there had been anything shown as to the character of the horse, or any circumstances which would have justified a tribunal in finding that the driving or stopping, in the proximity of a locomotive engine or train of cars, proved a want of reasonable care, such facts should appear; but the bill of exceptions finds that the facts were all undisputed, and that upon such undisputed facts the judge ruled as matter of law that the defendant was liable. This ruling goes to the extent that, if a person drives a* horse near to where cars may pass, he is liable, as matter of law, for all damage which may be caused by the horse taking fright, though he uses every possible care and the utmost diligence to prevent the injury. We cannot adopt this view of the law. And, as the bill of exceptions does not show a finding as a fact of want of reasonable care, and the facts reported as undisputed do not show such want of care, it was error to rule as matter of law that the defendant was liable.

Exceptions sustained.