Amstein v. Gardner

• Decision Date: 05 January 1882
• Citation: 132 Mass. 28
• Parties: Valentine Amstein v. G. C. Gardner
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 28

Valentine Amstein v. G. C. Gardner

Supreme Court of Massachusetts

January 5, 1882

Argued September 21, 1881

Franklin. Tort against the manager of the Troy &amp Greenfield Railroad and Hoosac Tunnel, for injuries occasioned to the plaintiff's horse by falling into the openings between the ties of a bridge in Buckland over which the railroad passed. Trial in the Superior Court, without a jury, before Dewey, J., who reported the case for the determination of this court, in substance as follows:

It was proved or agreed that on March 29, 1880, the plaintiff's horse, while being led along a highway in Buckland, by a competent person in the exercise of ordinary care, escaped and ran along several highways, about fifty rods, and entered upon land of the railroad corporation above named, at a point not fenced nor provided with any obstruction or barrier to prevent the entrance of cattle upon the railroad; that the horse proceeded along the tracks of the railroad until he came to a bridge over which the tracks were laid, and entering on the bridge, broke his legs between the ties, and was rendered worthless; and that the keeper of the horse pursued him and used ordinary diligence to recover control of him, but was unable to do so before the horse entered upon the bridge and was injured.

The plaintiff claimed to recover, because the defendant, being responsible for the proper management of the railroad, had neglected to provide a fence, or other obstruction or barrier sufficient to prevent the entrance of cattle on the railroad at the point where the horse entered from the highway.

Upon these facts, the defendant asked the judge to rule that the horse, being unlawfully in the highway when he entered upon the railroad, became a trespasser thereon; and that therefore the defendant was not liable to the plaintiff, either for neglect to maintain the fences, obstructions and barriers required by law, or for any other cause in the premises. The judge so ruled; and ordered judgment for the defendant. If the ruling was erroneous, the judgment was to be set aside and a new trial ordered; otherwise, judgment for the defendant.

H Winn, for the plaintiff.

C. Delano, for the defendant.

Allen J. Lord & Devens, JJ., absent.

OPINION

Allen J.

This case is to be distinguished from Darling v Boston & Albany Railroad, 121 Mass. 118. In that case, the horse entered upon the highway by straying from his owner's enclosure in the night, and strayed upon the highway...