WHERE LACK OF CONTROL IS MOMENTARY. 203 



bridge, it was held that the shying was not the proximate 

 cause of the injury and that the town was liable.^^ And in 

 Wisconsin it was held that where one driving a team along 

 a public street could not keep them from leaving the beaten 

 track and turning into a ditch along the side thereof, the loss 

 of control being but momentary, this was not negligence 

 which would preclude his recovering.^* 



In New York, where the plaintiff drove his horse and cart 

 on a pier belonging to the city which had become unsafe, and 

 the horse was frightened by a rush of water seen through a 

 hole and backed against the string-piece of the pier, which 

 was decayed, and the horse and cart fell into the water and 

 were lost, there being no evidence that the animal was unusu- 

 ally vicious or excitable, it was held that the fact of the fright 

 did not preclude recovery and that the horse was not uncon- 

 trollable because it shied or was momentarily not under the 

 driver's control, and, as the cause of the fright was occasioned 

 by the defendant's negligence, the question was one for the 

 jury.** Whether the court adopted the principle of Titus v. 

 Northbridge was left undecided, but the later cases, to be con- 

 sidered in the next section, would seem to settle that question 

 in the negative, as the Massachusetts case only establishes an 

 exception to a rule which is not itself followed in New York. 



64. The Rule that the Municipality is Liable in Such Cases. — 

 The rule considered in the preceding sections is not, however, 

 the one generally prevalent, and we shall now examine, by 

 States, the decisions that lay down a contrary doctrine. 



In New Hampshire the rule is that where an injury is 

 caused in part by a defect in a highway and in part by such 



'^ Aldrich v. Gorham, y7 Me. 287. And see Cleveland v. Bangor, 87 

 id. 259; Morsman v. Rockland, 91 id. 264. 



"^ Hein v. Fairchild, 87 Wis. 258. And see Houfe v. Fulton, Olson v. 

 Chippewa Falls, cited supra. 



'* Macauley v. City of New York, 67 N. Y. 602. And see to the same 

 effect Kennedy v. Same, 73 id. 365. 



