200 INJURIES TO ANIMALS ON HIGHWAYS. 



ported cases, is that above noted, where horses became un- 

 manageable in the manner and for the cause stated ; and in 

 such cases it has been frequently decided that there can be no 

 recovery against the town, although the plaintifif or the driver 

 was in ilo fault. . . . Some of these cases seem to go upon 

 the principle that the horse being actually uncontrollable, the 

 plaintifif is unable to show the exercise of ordinary care or of 

 any care at the time of the injury in order to avoid it. Others 

 say that the flight or unmanageableness of the horses is the 

 misfortune of the traveller, of which he must bear the loss. 

 A better reason would seem to be, that it is not within the 

 spirit or intent of the statute that the towns shall be bound to 

 provide roads that shall be safe for frightened and runaway 

 horses ; that the remedy is presumed to have been given only 

 to those who have their horses and carriages under their con- 

 trol at the time. But, whatever the true ground of such de- 

 cisions may be, or whether they are sound or not, it is un- 

 necessary to inquire here, since a recognized exception to 

 them is, that a horse is not to be considered uncontrollable 

 that merely shies or starts or is momentarily not controlled by 

 his driver." 



The exception last stated, within which the case may prop- 

 erly be considered as falling, is one that will be treated of in 

 the next section. It is extremely doubtful, however, whether 

 the dictum of the court as to the doctrine in Palmer v. An- 

 dover being still in full force in Massachusetts can be sus- 

 tained, in view of the later cases in that State. It should be 

 observed, however, that the court in Houfe v. Fulton refused 

 in terms to decide the point whether the rule as to the non- 

 liability of towns applied where a horse's flight or unmanage- 

 ableness was not caused by a defect in the highway. This 

 point, however, arose in Jackson v. Bellevieu,^* and it was 



" 30 Wis. 250. And see Schillinger v. Verona, 96 id. 456; Ritger v. Mil- 

 waukee, 99 id. igo; Johnson v. Superior (Wis.), 78 N. W. Rep. iioo. 



As to evidence of the condition of a street, see Olson v. Luck (Wis.), 

 79 N. W. Rep. 29. 



