Cushing v. Inhabitants of Bedford

Colt, J.

By the St. of 1872, e. 84, the selectmen of towns are authorized to “ establish and maintain such public drinking troughs, wells and fountains within the public highways, squares and commons of their respective towns, as in their judgment the public necessity and convenience may require; ” and the towns are authorized to raise and appropriate money to pay the expense thereof. These provisions make the selectmen a board of public officers charged with this duty; they are not agents of the town, but they represent the general public. They were so considered under a similar statute, which gave them the power to certify in writing, where telegraph posts might be erected within the highway. Young v. Yarmouth, 9 Gray, 386.

The towns, in their corporate capacity, have not been given the right by statute to construct drinking troughs in the public highways, nor does it appear that they have usually exercised the right. The vote of the town instructing the selectmen in this duty and limiting the expense, was irregular and unauthorized. Kean v. Stetson, 5 Pick. 492. The town cannot therefore be charged with having created a nuisance, from which the plaintiff suffered special injury ; and no recovery can be had on the second count in the declaration.

In support of the first count, which was for an injury caused by a defect in the highway, there was evidence that the plaintiff’s horse was frightened at a red watering trough on the side of the road, shied from his course and caused the carriage to go into a hole in the road, by which it was overturned and the plaintiff injured. It was not contended that the injury would have happened if the horse had not shied. The jury on this evidence would be justified in finding that the plaintiff’s loss of the control of his horse was momentary or partial. Titus v. Northbridge, 97 Mass. 258. Babson v. Rockport, 101 Mass. 93. They would be justified in finding that the shying of the horse was as much an accident as the failure of some part of the carriage ; Palmer v. Andover, 2 Cush. 600; or as when the fright was caused by an accumulation of ice about a watering tub; Stone v. Hubbardston, 100 Mass. 49; or by a pile of stones by the roadside. Bemis v. Arlington, 114 Mass. 507.

They would be justified in finding that at the place where the injury was received, which may have been some distance from the red watering trough, the plaintiff, while passing on the highway, using due care and having at least partial control of his horse, was injured by a defect in the highway which was the direct, sufficient and sole cause of his injury. It cannot be declared, as a matter of law, that the cause of the fright of the horse, producing the unexpected movement by which the carriage in the end went into the hole, was one of the direct and immediately contributing causes of the plaintiff’s injury.

Case to stand for trial on the first count only.