338 impounding; injuries on highways, etc. 



difficult 'and complex question arises, viz. : as to whether it 

 was negligence to bring such an animal into the place where 

 he was being used, in the sense that, if any mischief arises, the 

 owner ought to pay for it.-"** These are questions of much 

 nicety and largely questions of degree. We do not think 

 that there has ever been much attempted by way of system- 

 atizing the law with regard to these subjects and others of a 

 similar nature, and perhaps it is impossible to do so." ^*^ 



87. Damage Done in Highways by Passing Animals The sub- 

 ject of liability for injuries committed by animals straying 

 from the highway has been already considered. ^""^ Where 

 the injury is committed in the highway, the question is largely 

 one of negligence in the owner or person in charge of the ani- 

 mal. Thus in a Rhode Island case it is said : "We agree with 

 the Pennsylvania and New York cases that a horse, even 

 though he is not vicious, is a dangerous animal to be at large 

 in the frequented streets of a city. We think, however, that 

 the learned judge who tried this case with the jury went too 

 far when he instructed the jury that the defendant, if his horse 

 caused the injury, was absolutely liable for it, without regard 

 to whether the horse's presence in the highway was attribu- 

 table to his negligence or not." "^ So, one driving another's 

 cattle carelessly in a highway is responsible for the damage 

 they do, and the owner is not liable unless the driver was act- 

 ing as his sei-vant."* And where the driver is employed by 

 one who exercises an independent employment, he is not a 

 servant of the owner.^*^ 



Where a bull driven through a street became excited by a 

 noise and broke loose in consequence of a latent defect in the 

 nose-ring by which it was led, it was held that the leader was 



"' See Jvlella v. Baston, supra. "' 25 Sol. Jour. 385. 

 "' See § 75, supra. "' Fallon v. O'Brien, 12 R. I. 518. 

 ^'^ Smith z: French, 83 Me. 108. And see Pfaffinger v. Oilman (Ky.), 

 38 S. W. Rep. 1088; Clowdis v. Fresno Flume & Irrign. Co., 118 Cal. 315. 

 "' Milligan z\ Wedge, 12 A. & E. 737. 



