250 INJURIES TO ANIMALS ON HIGHWAYS. 



that the defendant was not excused merely because the plain- 

 tiff knew that some danger existed and voluntarily incurred 

 it, but that the amount of danger and the circumstances were 

 for the jury to consider.^^^ And if one drives his team on a 

 track negligently exposed, not voluntarily, but because his 

 horses are partially beyond his control, he is not to be charged 

 with negligence.^^® 



Where the travelled part of the highway was forty feet wide 

 and a strange, hired horse was driven within three feet of an 

 embankment on one side and shied and went over the em- 

 bankment, the lack of a railing is no ground for a recovery, the 

 plaintifif being guilty of negligence. "They drove where they 

 did, not of necessity, but from choice. The danger was as 

 apparent to them as it could have been to the township au- 

 thorities." 2ST 



Where an animal is injured by an obstacle in the street, an 

 action cannot be maintained unless the plaintiff used ordinary 

 care to avoid the obstacle.^^* Where A. placed lime rubbish 

 in the highway the dust of which frightened B.'s horse and 

 nearly brought him into contact with a wagon, in avoiding 

 which B. unskilfully drove over other rubbish placed in the 

 road by C. and was overthrown and hurt, it was held that B. 

 could not recover against A. as the proximate cause of his 

 injury was his own unskilfulness.^^* And where a horse and 

 wagon were injured by a voluntary attempt to drive them 



""^ Clayards v. Dethick, 12 Q. B. 439. 



Bramwell, L. J., in McMahon v. Field, 7 Q. B. D. 591, 594, says of the 

 above case: "I may observe, however, that I do not think that that case 

 was rightly decided, for it is not because the plaintiff chose to incur a risk 

 that he behaved reasonably in the way he acted." 



""■ Farmer v. Findlay St. R. Co. (O.), 53 N. E. Rep. 447. 



"" Kuhn V. Walker Tp., 97 Mich. 306. 



'"* Smith V. Smith, 2 Pick. (Mass.) 621; Butterfield v. Forrester, 11 

 East 60. 



"'' Flower v. Adam, 2 Taunt. 314. 



In Palmer v. Andover, 2 Cush. (Mass.) 600, it is said of this case: "The 

 grounds of the decision are, however, very briefly stated and it is some- 

 what difficult to understand precisely its extent." 



