INJURIES FROM FRIGHT AND DEFECT IN HIGHWAY. 201 



there held that if the horse was running away and uncon- 

 trollable at the time and that condition was not caused by a 

 defect in the highway and the accident would not otherwise 

 have occurred, the plaintiff could not recover. "The town 

 is not liable because the owner or driver was in no situation 

 to exercise ordinary care or prudence to prevent the injury 

 at the time it happened, which proof is in all cases necessary 

 in order to charge the town, unless the situation or disability 

 of the driver in this respect is caused by the same or some 

 other defect in the highway." 



This rule was again laid down in Kelley v. Fond du Lac ^^ 

 where, however, under the circumstances the town was held 

 liable, the plaintiff being obliged to deviate from the trav- 

 elled part of a highway by reason of an obstruction therein 

 and one of his frightened horses being killed by a defect out- 

 side of the travelled part, though it was held that ordinarily 

 a town was not bound to keep its highways in a suitable con- 

 dition for their entire width. Where a steep bank was left 

 unguarded and a team ordinarily quiet became frightened 

 and backed over it, the city was held liable, the loss of con- 

 trol being but momentary, on the principle announced in 

 Houfe V. Fulton, supra.^® 



In West Virginia it was held that a county is liable in dam- 

 ages for an injury which is the combined result of the fright 

 of a horse at a pile of rock beside the roadway and the failure 

 of the cotmty to provide a suitable guard rail along the ap- 

 proach to a bridge. After examining some of the cases above 

 cited, the court say : "From these authorities the proposition 

 is deduced that if sufficient time elapses between the fright 

 of the horse and the accident to permit the driver, being a 

 man of ordinary prudence, to make a proper effort to regain 



"■' 31 Wis. 179. And where a buggy ran into a ditch across the highway, 

 making the horses run away, and the plaintiff later was thrown out and 

 injured, the ditch was held to be the proximate cause of the injury: 

 Donohue v. Warren, 95 id. 367. 



"" Olson V. Chippewa Falls, 71 Wis. 538. 



