It appears that the plaintiff’s horse became diseased while travelling on the highway, and thereby became unmanageable. He ceased to obey the vein; bore to the left hand in spite of all the plaintiff could do to stop him, and after continuing on in this way for sixty-five or seventy feet, went over a bank wall on the left side of the road, where it was defective for want of a railing, and thus occasioned the injury complained of.
The case is substantially like that of Davis v. Dudley, 4 Allen, 557, where the court remarked that the injury was occasioned by “ the blind violence of the animal, acting without guidance or discretion.” It is true that, in that case, the horse had broken loose from the sleigh, and had left it and the driver at some distance behind him when he came upon the defect and received the injury. But the driver’s control over the horse was as effectually lost in this case as in that; and in both cases the action of the horse, after he became uncontrollable, occasioned the injury.
And this case is unlike that of Palmer v. Andover, 2 Cush. 600; for in that case, after the horses broke loose from the carriage, they ran away and did no injury, and if the place where they left the carriage had been ascending ground, the carriage would have remained where it was, and no injury would have happened to the passengers. But the bolt was drawn out at a place where the carriage was going down hill, and the natural laws of gravitation and motion carried it to the place where the road was defective. It is not inconsistent with the decision in that case, as explained and limited in Rowell v. Lowell, 7 Gray, 100, and in Davis v. Dudley, to hold that the defendants are not liable for an injury occasioned, as this has been, by the action of a horse that was at the time of the accident unfit for use, and was beyond the driver’s control, although the defect in the highway was also a cause of the injury.
The court are of opinion that when a horse, by reason of Iright, disease or viciousness, becomes actually uncontrollable, *266so that his driver cannot stop him, or direct his course, or exercise or regain control over his movements, and in this condition comes upon a defect in the highway, or upon a place which is defective for want of a railing, by which an injury is occasioned, the town is not liable for the injury, unless it appears that it would have occurred if the horse had not been so uncontrollable. But a horse is not to be considered uncontrollable that merely shies or starts, or is momentarily not controlled by his driver. Exceptions sustained*
A similar decision was rendered in the following case argued at October term 1867 for Bristol.