Bell v. Village of Wayne

• Decision Date: 27 March 1900
• Citation: 123 Mich. 386,82 N.W. 215
• Court: Michigan Supreme Court
• Parties: BELL v. VILLAGE OF WAYNE.

82 N.W. 215

123 Mich. 386

BELL v. VILLAGE OF WAYNE.

Supreme Court of Michigan

March 27, 1900

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by Andrew Bell against the village of Wayne for personal injuries alleged to have been sustained on a highway within defendant's corporate limits. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Montgomery and Moore, JJ., dissenting.

Selling & Hatch, for appellant.

Cutcheon & Stellwagen, for appellee.

GRANT C.J.

The distinction, now contended for in cases of this character was not lost sight of by the writer of the opinion in Doak v. Saginaw Tp. (Mich.) 78 N.W. 883. The differences between that case and this are these: In this case the banks were higher and steeper, at least on one side. In the Doak Case the frightened horse backed into the ditch. In the present case the backing horse was struck by the plaintiff, started forward, crossed the road, and went down the embankment. The roadbed in this case was wider than that. Here the roadbed was 17 feet wide, and in good condition. In both cases the horses were frightened, and not by anything for which the township was at fault. In the Doak Case it was uncertain what frightened the horse and caused him to back. In the present case it was two boys in a tree. The plaintiff lost control of his horse, so that he was unable to keep him within the traveled way, 17 feet wide. He testified that there would have been no trouble if the house had not seen the boys in the tree. Whether this is a case where barriers should have been erected I do not deem it necessary to determine. In Massachusetts the statute expressly makes townships liable for the failure to erect barriers. What the decisions would be if their statute were like ours is, at least, doubtful. In Hinckley v. Somerset, 145 Mass 326, 14 N.E. 166, the stone wall which formed the barrier was 2 feet high. On the outside of the wall was water 10 feet deep, the surface of which was about 8 feet below the top of the wall. The horse became frightened at some oyster boats and ran into or upon the wall, and got astride of it with his hind legs. That case is in direct conflict with Beall v. Athens Tp., 81 Mich. 536, 45 N.W. 1014. To view preceding link please click here It is impossible to reconcile them. In Harris v. Inhabitants of Great Brrington, 169 Mass. 271, 47 N.E. 881, it was held that the roadbed, 17 feet wide, was not defective by reason of narrowness, but that there was evidence that the highway was defective for want of a sufficient railing. If, as my Brother MONTGOMERY says, the rule has not been made entirely clear by the decisions, it undoubtedly results from the difficulty in determining when the driver has, and when he has not, lost control of his frightened horse. In the Doak Case the horse had become so unmanageable that the driver could not prevent his backing. Doak's counsel said in their brief: 'The driver did his utmost to prevent the backing.' In the present case the frightened horse was backing, was struck by the driver, and had become so unmanageable that he could not keep him within the limits of the traveled road, wide enough for two teams to pass with perfect safety. Plaintiff did his utmost to keep the horse in the road, but failed to do so. We held in St. Clair Mineral Springs Co. v. City of St. Clair, 96 Mich. 463, 56 N.W. 18, that where a horse stopped, backed over the apron of a bridge against an insufficient railing, fell into the water, and was drowned, the township was not liable. In that case there was no fright. The horse started up the bank, and backed because of too great a load. Under the contention of the plaintiff in this case, if the horse, instead of backing from an overload, had backed from fright, and the jury could find that the driver had lost only temporary control, the township would have been liable. In neither case was the township responsible for the proximate cause of the accident. What difference, in principle, between the two cases? Is it logical to say that, where the horse backs from other cause than fright, the township is not liable, but where he backs from fright it is liable, provided the jury are able to find that the driver had not lost complete control of him? There certainly is no difference in the liability between backing and shying or running down an embankment or into a ditch. In Beall v. Athens Tp., the horse became frightened at a log upon the side of the highway. The driver struck his horse, which jumped forward, and upset the buggy. In this case the horse became frightened, was struck, could not be kept within the highway, and went down the embankment. Where is the difference in principle or in the facts between that case and the present? Both horses went over the side of the road because their drivers were unable to keep them within the traveled way. In Lambeck v. Railroad Co., 106 Mich. 512, 64 N.W. 479, plaintiff's horse had run for a block, and ran into the end of a car standing in the highway. Plaintiff was unable to keep him from running the carriage against it. It was held that the horse was beyond control. In Agnew v. Corunna, 55 Mich. 428, 21 N.W. 873, it was claimed that the horse was frightened at a large stone standing in the highway between the roadbed and the gutter, turned up a side street, and upset the buggy. It was there said: 'If the stone had anything to do with the action of the horse and damage to the buggy, it was by frightening the animal, and not by hurting or impeding him.' If the horse in that case had shied or run into the gutter, or, running down the side of the roadbed, had caused the buggy to sway and upset, would not the rule of law have been the same? In Bleil v. Railway Co., 98 Mich. 229, 57 N.W. 117, the horse was hitched, broke away, and ran into iron rails piled upon the street. If the driver had been in the buggy when the window fell, and the horse had started and run upon the rails, causing the same injury, would this court have said that the rails, and not the falling of the window, were the proximate cause of the injury, if the jury were enabled to find that the horse was not beyond control? What is the principle or rule upon which these decisions are based? It is that the primary cause of the accident is the fright of the horse, not the defect in the highway. Why should a jury be left to speculate upon the question whether the driver could have controlled his horse but for the defect in the highway? In Langworthy v. Green Tp., 95 Mich. 93, 54 N.W. 697, the wagon struck a log, which was from 4 to 18 inches above the roadbed, and near the center thereof. The horse had not left the traveled road, but had, for some reason which did not appear, shied a little to one side. It did not appear that the horse was running, or was going at an unsafe speed for a properly constructed roadbed. By referring to the same case in 88 Mich. 207, 50 N.W. 130, it will be seen that the plaintiff was driving at a slow trot when the log was struck.

We are not concerned with the rule in other courts, if this court has established a rule and followed it. In the cases above cited I think we have established and recognized the rule to be that a township is not liable, under our statute, for the failure to maintain barriers, where the horse leaves a traveled highway, which is in good condition and wide enough to drive upon with safety, through any cause for which the township is not responsible. When a horse has become so frightened that, under proper management, he cannot be kept within a good roadbed 17 feet wide, he is beyond control, under our decisions, and the fright, not the absence of barriers, is the cause of the accident. Upon no other rule can these decisions, in my opinion, be sustained.

I think the learned circuit judge was correct in directing a verdict for the defendant. Its reversal would, in my judgment, result in overruling the cases above cited, and approved in Doak v. Saginaw Tp. The judgment should be affirmed.

LONG, J., concurred.

HOOKER J. (concurring).

The doctrine that a township is not liable for an injury, where though negligent, such negligence is not the proximate cause of the injury, has been asserted and reiterated many times by this court. Like other rules, it is invoked in many cases where its application is of doubtful propriety, and doubtless in some to which it should not be applied. It is not unnatural that minds should differ in close cases, and there is always danger that a misapplication shall make it more difficult to adhere to the rule, an easy to extend it. There is but one proper way to deal with such questions, and that is to adhere to the underlying principle, and not put too great emphasis upon similar, but not necessarily analagous, decisions. If this is done in this case, I am of the opinion that its proper solution need not be difficult. It has been several times held that where a horse, while running away, strikes an obstruction, the resulting injury is due to the running away, and not to the obstruction, because the former, and not the latter, is the proximate or moving cause of the injury. The law requires highways to be kept in condition for the ordinary uses, and it expects the driver to be in control of his horse, and does not assume to compensate those who are injured through a failure to maintain such control. The decisions do not refuse relief upon the ground that the horse was running away, but upon the ground that the uncontrolled impulse of the horse was the moving, i. e. proximate, cause. Where the loss of control is due to the negligence of the town, it has been held that the township is liable, but...