Whitely v. Inhabitant of China

Tapley, J.

This was an action to recover damages for injuries received by the plaintiff’s horse from a defect in the highway of the defendant town.

The question raised by the exceptions relates to damages. The value of the horse before the accident and after was a materia] matter in ascertaining the amount of damage done. The condition of the horse as regards his lameness and his legs within a week' after the accident, might aid very much in determining the character and extent of the injury received. The questions relative to this matter were, we think, proper, and the answers should not have been excluded.

The presiding judge instructed the jury “ that if the horse was rendered timid or unkind by the accident, they would have a right to take this fact into consideration in estimating damages.” This, we think, under this declaration was proper, and the plaintiff should have been allowed to prove this fact by any direct evidence showing the fact. We cannot conceive of any evidence more direct to this point than the conduct of the horse afterward and immediately before the accident in similar places. Witness was allowed to state that previous to the accident the horse was sound and kind; if he was rendered unkind and timid so as to be unsafe to drive over any bridge thereafter, it was a “ damage in his property ” within the meaning of R. S., c. 18, § 61, and the plaintiff should have been allowed to show the fact.

Exceptions sustained.

Appleton, C. J.; Cutting, Kent, Dickerson, and Barrows, JJ., concurred.