The negligence with which the plaintiff charges the defendants is the failure of their motorman seasonably to discover the perilous position of the horse, and stop the car. It cannot be doubted that the evidence was sufficient to sustain a finding of such negligence. It was the duty of the motorman to keep watch of the track ahead of his car to avoid collisions with objects that might be upon the track, whether rightfully or wrongfully. The law imposed the duty upon him for the safety of persons both upon the highway and upon the car. Indeed, his own safety depended upon its faithful performance. If the light was dim and the weather was foggy, greater watchfulness and care would be needed to bring his conduct up to the standard of ordinary care, than if it was light and clear. At the time of the collision the car was passing over a straight piece of track, 580 feet long, the whole length of which the motorman could see from the moment of entering upon it if the light was sufficiently strong and the weather was clear. The testimony regarding the weather was conflicting, but it is sufficient for the present purpose that the jury might properly have found that it was clear. Besides the direct evidence that it was clear, there was the testimony of a witness that he saw the horse as he turned into Main street, and at the same time saw the car approaching 300 or 400 feet away. *Page 249 But if the jury found that the weather was densely foggy, they might reasonably find, also, that so large an object as a horse hitched to a grocery wagon could be seen when at a distance from the car sufficient to enable the motorman to stop the car before colliding with the team; or if not, that it was negligence to run a car in a village highway in such weather at a speed of fifteen miles an hour.
If, as the defendants say, the horse was wrongfully in the highway, the fact would not relieve them from responsibility for the injury in case it was caused by their negligence. In that event, their wrong would consist of negligently injuring the plaintiff's horse while carelessly exposed to danger and the plaintiff was not present. The law would not justify the defendants injuring the horse under such circumstances by their negligent acts, any more than it would if their acts were intentional. The only question would be whether they could have prevented the injury by an exercise of ordinary care. If they could, their negligence would be, in law, the sole cause of the injury. "He who cannot prevent an injury negligently inflicted upon . . . his property by an intelligent agent, `present and acting at the time,' . . . is legally without fault, and it is immaterial whether his inability results from his absence, previous negligence, or other cause." Nashua Iron and Steel Co. v. Railroad,62 N.H. 159, 163; Felch v. Railroad, 66 N.H. 318; Edgerly v. Railroad,67 N.H. 312; Mitchell v. Railroad, 68 N.H. 96; Gallagher v. Railway,70 N.H. 212; Parkinson v. Railway, 71 N.H. 28; Carney v. Railway,72 N.H. 364, 370.
Exceptions overruled: judgment for the plaintiff for $150 and costs.
All concurred. *Page 250