Barber v. Manchester ( 1900 )

A discussion of the several exceptions of the plaintiff to the finding of facts, is unnecessary. An examination of the evidence made a part of the record, shows that the finding contains all the facts proved which are material to a proper presentation of the questions of law decided by the court below. There was no error in the refusal to make the requested corrections.

Proof that the plaintiff's horse was one of ordinary gentleness, and was frightened by the noise of the machinery, without fault of the plaintiff, does not necessarily render the defendants liable for the injury sustained.

The foundation of the action is the alleged negligence of the defendants. The acts constituting such negligence were the placing and operating near the traveled path of the highway, of the engine and machinery described in the finding, which are alleged to have been a nuisance, because they were calculated to frighten horses of ordinary gentleness passing over the road.

It appears that the machinery was placed outside of the limits of the highway, and upon the defendants' land, and that it was not a nuisance per se.

In using their own property upon their own land the defendants were, however, bound to exercise reasonable care to avoid injuring the persons or property of others. One of the principal inquiries in the case was whether the act of the defendants in placing and operating this machinery so near a public highway, was a reasonable use of their property; and that, under the pleadings, depended upon the question of whether these objects, when so placed and operated, were naturally calculated to frighten ordinarily gentle horses traveling upon the highway. Proof that the plaintiff's horse, which was one of ordinary gentleness, was frightened by the noise of the machinery, was undoubtedly evidence that it was of a character likely to frighten such horses, but it was not conclusive proof of that fact. It may have appeared that of a great number of horses of ordinary gentleness which, during the three seasons the ensilage cutter had been used at this place, had passed it under precisely the same circumstances, the plaintiff's was the only one which had been frightened. It can rarely be said of the commonest objects near the road, that they will never frighten an ordinarily gentle horse. Generally the most positive assertion one can make is that there is no reasonable probability of such a result. The exercise of reasonable care to avoid injury to others, while using their own property, forbade the defendants from operating near the highway a machine of such a nature that there was a reasonable probability of its noise or appearance frightening horses of ordinary gentleness.

It would have been no answer to the complaint that the defendants did not know or believe that the machinery operated at this place was likely to frighten horses, if they ought to have known it. They were chargeable with the knowledge of men of ordinary intelligence and experience in such matters. They were bound to know whether there was a reasonable probability that passing teams would become so frightened by these objects as to endanger the persons and property of those lawfully using the highway.

On the other hand, the law did not restrict the defendants to a use of their ensilage machine in places where, from its noise and appearance, it could not frighten horses upon the highway, but only to those places where it was not likely to have that effect.

The practical question to be decided upon that branch of the case was whether a person of reasonable prudence and foresight, having due regard for the rights of others to drive over this highway, and for the safety of their persons and property, would under the circumstances have anticipated that the operation of this engine and machinery, at this place, would frighten an ordinarily gentle horse passing along the road. By an averment that a certain object is calculated or likely to frighten horses of ordinary gentleness, is meant that such is a result which was to have been reasonably expected.

The question whether a given object is of a nature calculated to frighten horses of ordinary gentleness is one of fact, to be determined not only from the effect which it is shown to have had upon horses in particular instances, but from evidence of its position and motion, of the noise which it produces, of its form, color, and other characteristics, as well as from the testimony of qualified witnesses whether it is likely to frighten horses. Elliott on Roads and Streets, 449; House v. Metcalf, 27 Conn. 630; Dimock v. Suffield, 30 id. 129; Knight v. Goodyear's India Rubber Glove Mfg. Co., 38 id. 438, 443; Ayer v. Norwich, 39 id. 376; Clinton v.Howard, 42 id. 294, 305; Parker v. Union Woolen Co., ibid. 399, 402; Huntoon v. Trumbull, 2 McCrary (U.S.), 314;Piollet v. Simmers, 106 Pa. 95; Lynn v. Hooper, 93 Me. 46 citing a number of cases concerning objects calculated to frighten horses.

The conclusion of the trial court upon this question of fact was not erroneous, because it was also found that the plaintiff was free from negligence, and that her horse was of ordinary gentleness.

The plaintiff's claim that the testimony of witnesses that these objects were not calculated to frighten horses, should not and could not outweigh the evidence of the fact that they had frightened the plaintiff's horse, but that that fact, having been proved, the defendants should be held liable, is similar to the question just discussed. It assumes that the fact that the plaintiff's horse was frightened by these objects is conclusive upon the question of the defendants' liability. The ruling of the court was upon the whole, not upon a single element of the claim. We do not construe the finding as stating that the court ruled that the so-called opinion-evidence ought, as a matter of law, to outweigh the fact referred to. The testimony of such witnesses being admissible, its relative weight or probative force as compared with that of the fact that the plaintiff's horse had been frightened, was a question for the trier to determine. It does not follow from the judgment rendered that the court considered the opinions of these witnesses as outweighing such fact, as the record clearly shows that there was other evidence than such opinions, from which the court may have concluded that this machinery was not calculated to frighten horses.

Having found that it was not calculated to frighten horses of ordinary gentleness, the court properly held that the law did not require the defendants to take any precautions to notify travelers of the presence of the machinery near the highway. The court was informed of the character of the place where the machine was operated, and that it was in the borough of Winsted, and having found that the defendants were guilty of no negligence in operating the machinery at that place, it was of no importance whether a greater degree of care was required in operating it there than at some other place.

The questions asked of the witnesses Beach, White and Dr. Drake, were properly admitted. When the inquiry of the witness Beach was permitted, it appeared from his testimony that he had seen and worked upon the defendants' machine. When it became obvious that the witness was mistaken, plaintiff's counsel should have asked to have the testimony stricken out, if he was apprehensive that the court might still consider it as evidence.

We think the facts testified to by Dr. Drake, that he had driven horses but little for twenty-five years, that he had seen the engine and cutter in operation at this place, had observed its location and noticed the noise it made, and had seen the horses about the machine drawing corn to be cut, were sufficient to justify the ruling admitting the question asked of him.

Some facts must be shown as the foundation of such an opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence. It is largely a matter of judicial discretion whether a witness has been shown to have sufficient experience and opportunity of observation to render his opinion of value upon a question of this kind.

The testimony of these three witnesses was admissible, not as expressions of opinion by experts, but as statements of "practical and observing men" of the "result of their own observation and knowledge" upon a question, the particular elements of which were so numerous, and the character of which was such, that it was impracticable for them to state to the court in detail all of the facts "as fully and perfectly as they had observed them." The law admitting such evidence is discussed by this court in the familiar cases ofPorter v. Pequonnoc Mfg. Co., 17 Conn. 249, Dunham's Appeal, 27 id. 192, 198, Clinton v. Howard, supra, Sydleman v.Beckwith, 43 id. 9, and the more recent cases of Ryan v.Bristol, 63 id. 26, and Turner's Appeal, 71 id. 305, 315.

The deposition of Edwin Sheffer related only to the question of the character of the plaintiff's horse. The court found adversely to the testimony of the deponent, that the plaintiff's horse was of ordinary gentleness and that the plaintiff was without negligence. We regard the language of the record as equivalent to a finding that the objects in question were not of a nature calculated to frighten such a horse as that driven by the plaintiff. The appellant makes no claim in her appeal that the fact that the horse was accustomed to shy is inconsistent with its being one of ordinary gentleness. We must therefore consider it as coming fairly within the latter description. As we are unable to see how the admission of this deposition could in any way have harmed the plaintiff, we do not decide whether the provisions of the statute requiring reasonable notice to be given to the adverse party to be present at the time of taking such deposition were complied with.

There is no error.

In this opinion the judges concurred, except HAMERSLEY, J.