Texeira v. Sundquist

• Decision Date: 24 October 1934
• Citation: 288 Mass. 93,192 N.E. 611
• Parties: TEXEIRA v. SUNDQUIST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

288 Mass. 93

192 N.E. 611

TEXEIRA

v.SUNDQUIST.

Supreme Judicial Court of Massachusetts, Barnstable.

Oct. 24, 1934.

Appeal from First District Court of Barnstable; Swift, Judge.

Action of tort by Raymond Texeira against Paul W. Sundquist. From an order of the appellate division dismissing a report by a judge of the district court, who found for the plaintiff in the sum of $150, the defendant appeals.

Affirmed.

G. L. Wainwright, of Brockton, for appellant.

N. M. Gediman, of Falmouth, for appellee.

DONAHUE, Justice.

The defendant was operating a motor vehicle on a state highway in Falmouth between the hours of three and four o'clock on a foggy October morning at the rate of twenty-two miles an hour. The fog was so heavy that he could see only seven feet ahead of him. When opposite the home of the plaintiff he saw an unattended horse six or seven feet away coming toward him from his left. There was a collision and the horse, which belonged to the plaintiff, was killed. A judge of the district court found the defendant negligent, assessed the damages of the plaintiff, and at the request of the defendant reported the case to the appellate division where the report was ordered dismissed.

Even though, as the defendant contends, he was not able in the fog to see the horse earlier and thus avoid hitting it, the finding that he was negligent was warranted. By reason of the speed at which he chose to operate his motor vehicle under such conditions as to visibility that no person, animal or object on the highway could be seen if more than seven feet ahead of him, the defendant could be found to have been lacking in the quantity and quality of care which the law required him then and there to furnish. Woodman v. Powers, 242 Mass. 219, 136 N. E. 352;Commonwealth v. Arone, 265 Mass. 128, 163 N. E. 758;Arnold v. Colbert, 273 Mass. 161, 173 N. E. 423;Durling v. Lamontain, 277 Mass. 517, 178 N. E. 827;Clark v. C. E. Fay Co., 281 Mass. 240, 183 N. E. 423;Sexton v. West Roxbury & Roslindale Street Railway Co., 188 Mass. 139, 74 N. E. 315. Not only did the acts of the defendant in fact cause damage to the plaintiff but the evidence warranted the finding that the defendant was legally responsible for that damage. The trial judge could find that the defendant should have anticipated that harm or damage to some one, of the same general character as that suffered by the plaintiff, was a reasonable and probable consequence of his acts. It is of no materiality that the particular damage sustained by the plaintiff could not have been foreseen. Ogden v. Aspinwall, 220 Mass. 100, 103, 107 N. E. 448, and cases cited; Sponatski's Case, 220 Mass. 526, 530, 531, 108 N. E. 466, L. R. A. 1916A, 333;Burnham v. Boston & Maine Railroad, 227 Mass. 422, 426, 116 N. E. 735;Perlman v. Burrows, 270 Mass. 182, 169 N. E. 897.

A stray horse when upon a public highway without negligence on the part of its owner is not an outlaw nor as against a traveller exercising a traveller's rights to use the highway is such an animal a trespasser. The statutes dealing with pounds and the impounding of certain domestic animals including horses impose no penalty upon the owner of such an animal which appears unattended on a highway, although its presence there is unlawful in the sense that it may be taken, placed in a pound and not delivered to its owner unless he pays the fees and expenses incident...