The demurrer was properly overruled. An allegation of due care on the part of the plaintiff, or that the lumber was within the limits of the highway, was not necessary. Corey v. Bath, 35 N.H. 530; Gordon v. Railroad,58 N.H. 396.
The conduct of the plaintiff's horse after the accident and on the same day, on being driven by the pile of lumber, was competent evidence on the question of the cause of the accident. It tended to show that the horse took fright at the lumber, and also that the lumber was likely to frighten horses. Darling v. Westmoreland, 52 N.H. 401. The remarks of the plaintiff's counsel on the subject in his opening statement were therefore unobjectionable.
The plaintiff's testimony regarding the kind of dress that she was obliged to wear after the accident was competent on the question of the extent of her injury.
The plaintiff's relations with Condon were not relevant to any issue in the case. A suggestion or insinuation made by questions put upon cross-examination, or in any other manner, that their relations were illicit, could have been made for no purpose except to affect the weight of her testimony as a witness, or to prejudice the jury against her. Whichever may have been the defendants' purpose, justice required that the plaintiff be permitted to rebut the suggestion by evidence tending to show that it was without foundation. No ground of objection to the testimony of the physicians has been suggested, and none is perceived.
The instruction to the jury requested by the defendants was properly refused. One who negligently places near a public highway an object calculated to frighten horses lawfully traveling thereon, or who negligently conducts his lawful business in such a manner as to frighten them, is liable for the consequences. Gordon v. Railroad, 58 N.H. 396; Lewis v. Railroad, 60 N.H. 187, 189; House v. Metcalf, 27 Conn. 631, *Page 549 640; Knight v. Company, 38 Conn. 438.
Exceptions overruled.
CHASE and WALLACE, JJ., did not sit: the others concurred