Lynn v. Hooper , 47 L.R.A. 752 ( 1899 )

Savage, J.

Action for personal injuries occasioned by an alleged nuisance. The plaintiff claims that while traveling upon the highway adjacent to the defendant’s land, his horse became frightened by a hay cap placed by the defendant over a bunch of her hay standing upon or near the highway, and that the horse bolted against a fence on the opposite side of the road, whereby the plaintiff was thrown out of his wagon and sustained the injuries complained of. The verdict was for the plaintiff. The defendant asks us to set the verdict aside as being contrary to the law and the evidence. Several issues of fact were sharply contested before the jury; among them, the character of the horse for gentleness, the location of the hay cap, its distance from the traveled way, and whether the horse’s fright was occasioned by the hay cap or otherwise.

If the action is maintainable upon proof of such facts as a jury would be warranted in finding from the evidence in the case, the verdict must be sustained. A discussion of the evidence in detail is unnecessary. From a careful examination of the whole case, we think a jury would be warranted, in finding the following facts : That the plaintiff’s horse was ordinarily gentle and well broken; that the horse was frightened by the appearance of the hay cap; that thereby the injury was occasioned; that the hay cap, because of its color, its fluttering, flapping movement when disturbed by the breezes, and its proximity to the traveled way, was an object naturally calculated to frighten horses of ordinary gentleness; that the defendant permitted the hay cap to remain where it was after she had had notice that it was likely to frighten horses, and that horses had actually been frightened thereby.

The evidence tends to show that the cap covering the bunch of hay was a square piece of white cloth, and that its four corners were attached to ropes, which in turn were tied to four stakes driven in the ground in the form of a square. The evidence also tended to show that the cloth cap would move up and down by the action of the breezes, like the fluttering of a tent. The plaintiff testified that the hay cap was in motion at the time his horse became frightened. The bunch of hay was situated on land about three feet lower than the traveled way. Its distance from the nearest wheel track is in dispute. The defendant contends that it was twenty-eight feet. The plaintiff is equally certain that it was only from fifteen to seventeen feet. There was no fence between the traveled way and the hay cap. We think the weight of evidence supports the contention of the plaintiff as to distance, or at least that a jury would have been warranted in so finding. Eight witnesses, several of them apparently disinterested, testified for the plaintiff on this point, and the farthest distance testified to by any of them is seventeen and one-half feet. There is also a controversy whether the hay cap was within the limits of the location of the highway. The defendant contends that it was without the location, upon her own land, and that therefore she had a lawful right to place it and keep it there without liability; that it was a reasonable use of her own property. But the plaintiff contends that the hay cap was within the located way. As we have already suggested, the balance of the weight of the evidence tends to support the contention of the plaintiff that the hay cap was not farther than seventeen and one-half feet from the nearest wheel track, and an examination of the surveyor’s plan, introduced and used by the defendant at the trial, shows that the side line of the located way, at the point where the hay cap was, was more than seventeen and one-half feet from the nearest wheel track. Therefore, we must assume that the hay cap was within the way. Under these conditions, then, the next question which arises is whether the hay cap was so near the traveled part of the highway, and was of such a character as naturally to frighten horses of ordinary gentleness lawfully driven thereon. Was it, as the plaintiff claims, a nuisance ?

It is true that the owner of land adjacent to a way and owning presumptively to the centre of the way may, subject to the public easement, make a reasonable use of the land, even within the location. Farnsworth v. Rockland, 83 Maine, 508. But we think that a use which involves the placing of objects of such a character as naturally to frighten horses, ordinarily gentle and well broken, is not reasonable. Such a use is unlawful, and constitutes a nuisance. The land owner may not make erections or excavations within the located way, of such a character as to imperil public travel, by frightening horses lawfully driven along the way.

Whether in fact the hay cap was an object naturally calculated to frighten horses of ordinary gentleness is stoutly controverted. To show that it was such an object, the plaintiff relies not only upon the appearance and proximity of the hay cap, but also upon the fact that other horses, claimed to be ordinarily gentle, had been frightened by this very cap. Crocker v. McGregor, 76 Maine, 282 ; House v. Metcalf, supra; Brown v. Eastern and Midlands Ry. Co., 22 Q. B. Div. 391. The hay was bunched and the cap placed over it Wednesday; the plaintiff was injured the following Saturday. There is testimony that between these dates no less than seven or eight other horses became frightened by this same cap.

Was this cap of such a character and so placed as to constitute a nuisance ? “A nuisance,” said this court in Norcross v. Thoms, 51 Maine, 503, “consists in a use of one’s own property in such a manner as to cause injury to the property, or other right, or interest of another. It is the injury, annoyance, inconvenience or discomfort thus occasioned, that the law regards, and not the particular business, trade or occupation from, which these result. A lawful as well as an unlawful business may be carried on so as to prove a nuisance. The law in this respect looks with án impartial eye upon all useful trades, avocations and professions. However ancient, useful or necessary the business may be, if it is so managed as to occasion serious annoyance, injury or inconvenience, the injured party has a remedy.” Davis v. Winslow, 51 Maine, 264. These are general principles. In this case, if the hay cap was a nuisance, it was so because it endangered the public use of the way. Staples v. Dickson, 88 Maine, 362. A thing may be a nuisance because it interferes with or endangers public travel, although it does not of itself constitute an obstruction in the highway. An object at the side of a highway of such a character that it is naturally calculated to frighten horses of ordinary gentleness may constitute a nuisance. Elliott on Roads, 482; Cooley on Torts, 617.

It is impossible to state a general rule by which it can be determined whether any particular object constitutes a nuisance or not. The question must depend upon the conditions and circumstances in each case. Conditions vary. No two cases are alike. Hence it is rare that one case can be a binding precedent for another.

Its distance from the traveled path, its relation to fences and other objects, its height or depth from the road, its color, whether it is customarily found in similar places and under similar conditions, whether it is so situated that horses being driven come suddenly in sight of it, whether it is in repose, or whether it is fluttering like a living thing, — these and many other considerations must be taken account of in determining whether the object is a nuisance or is dangerous to public travel. This suggestion is fully borne out by an examination of cases concerning objects causing fright, some of which we cite: A pile of shingles, Merrill v. Hampden, 26 Maine, 234; Lawrence v. Mt. Vernon, 35 Maine, 100; evergreen tree standing in cart, Davis v. Bangor, 42 Maine, 522; a rock, Card v. Ellsworth, 65 Maine, 547; a cow, Perkins v. Fayette, 68 Maine, 152; a hole, Spaulding v. Winslow, 74 Maine, 528; a pile of stones, Clinton v. Howard, 42 Conn. 294; a pile of plastering, Dimock v. Suffield, 30 Conn. 129; a tent, Ayer v. Norwich, 39 Conn. 376; a watering-trough painted red, Cushing v. Bedford, 125 Mass. 526; bales of hay charred by fire, Morse v. Richmond, 41 Vt. 435; a hollow log blackened by fire, Forshay v. Glen Haven, 25 Wis. 288; sled with tubs on it, Judd v. Fargo, 107 Mass. 264; rubbish, Burgess v. Gray, 1 Man. Gr. & Scott, 578. See also cases in note in Elliott on Roads, 449. Most of these objects were held to be nuisances, or imperiling travel.

In the present case, the court is of opinion that a jury might properly find that the defendant’s hay cap was situated within the highway, and that by reason of its color, shape, situation and motion, it was naturally calculated to frighten a horse of ordinary gentleness. If so, it was unlawfully there, and the defendant is to be held responsible for the natural consequences. There are no legal impediments to the maintenance of the action. The facts have been passed upon by the jury, and we perceive no sufficient reason for disturbing their finding.

Motion overruled.