I cannot agree with the opinion as expressed by the majority of the judges of this court in this case. By this decision the rule has been abrogated that the verdict of a jury in favor of the plaintiff, approved by the trial court's judgment and the affirmance of that judgment by the Appellate Court, determines finally all controverted questions of fact, and that this court may in such a case, where no other ground for reversal is presented, reverse the judgment only where there is no evidence whatever fairly tending to prove the allegations of the declaration. I am not willing to set aside these well established legal principles. The effect of this decision is, that under no circumstances can a highway be obstructed unless the materials which make up the obstruction are placed in the traveled part of the highway. Furthermore, that under no circumstances is it possible for a defendant to be guilty of negligence in placing objects on a highway, regardless of the nature and character of the objects and the time they were permitted to remain upon the highway, where the facts show that the objects in question caused a gentle horse to become frightened, resulting in the injury of the person driving such horse. *Page 575
From the decision in this case it would appear that no decided case of any court of last resort contains a contrary holding. Quite the contrary is true, and the following excerpts and rules indicate that courts worthy of the highest respect have decided similar cases diametrically opposite to the decision in this case:
In Lynn v. Hooper, 93 Me. 46, the court said: "It is impossible to state a general rule by which it can be determined whether any particular objects constitute a nuisance or not. The question must depend on the conditions and circumstances in each case. Conditions vary. No two cases are alike, hence it is rare that one case can be a binding precedent in another. Its distance from the traveled path, its relation to fences and other objects, its height or depth from the road, its color, whether it is customarily found in similar places and under similar conditions, whether it is so situated that horses being driven come suddenly in sight of it, whether it is fluttering like a living thing — these and many other considerations must be taken into account in determining whether the object is a nuisance or is dangerous to public travel. This suggestion is fully borne out by an examination of the cases concerning objects which cause fright, some of which we cite: A pile of shingles — Merrill v. Hampden, 26 Me. 234; Evergreen tree in car — Lawrence v. Mt. Vernon, 35 Me. 100,Dawson v. Bangor, 42 Me. 522; a rock — Card v. Ellsworth,65 Me. 152; a hole — Spaulding v. Winslow, 74 Me. 528; a pile of stones — Clinton v. Howard, 42 Conn. 294; a pile of plastering — Dennock v. Suffield, 30 Conn. 129; a tent — Ayer v. Norwich, 39 Conn. 376; a watering trough painted red —Cushing v. Bedford, 125 Mass. 526; bales of hay charred by fire — Morse v. Richmond, 41 Vt. 435; a hollow log blackened by fire — Foshay v. Glen Haven, 25 Wis. 288; sled with tubs on it — Judd v. Fargo, 107 Mass. 264. See, also, note in Elliott, Roads and Streets, 449." IllinoisCentral Railroad Co. v. Griffin, 184 Ill. 9. *Page 576
It was held in Fritsch v. Allegheny, 91 Pa. 226, that whether or not it was negligence to permit the carcass of a dead horse to remain on the highway is for the jury to determine. Whether or not a pig sty containing pigs is an obstruction is a question for the jury. Bartlett v. Hooksett, 48 N.H. 18.
In Topeka Water Co. v. Whiting, 39 L.R.A. (Kan.) 90, a horse became frightened at a spurting water hydrant. The court overruled the contention of the water company that since it had the right to place the hydrant upon the street, the flushing of the main at the point being necessary and done in a proper way, there was no liability. The court said that the company had the right to place its hydrants in the street and to flush them, but it had no license or right to flush them at such a time or in such a manner as to impede travel or imperil the safety of those passing in the street. The license to flush carried with it the obligation to do so with reasonable care and due regard for the rights of others. Whether an object is such as is calculated to frighten a gentle and road-worthy horse is usually a question of fact for the jury to determine. The court said further that the protection and care which it is necessary to use in cases of this kind must be determined by the character of the risk and the nature of the threatened injury.
In the case at bar the jury by its verdict determined that the defendant was negligent in placing the spools of wire upon the roadway. The question of negligence was one of fact, and this court should not disturb it after the judgment had been affirmed in the Appellate Court.
Mr. JUSTICE DeYOUNG concurs in this dissent.
Mr. JUSTICE STONE, also dissenting. *Page 577