
    Benjamin W. Cole vs. City of Newburyport.
    Essex.
    November 5, 1880.
    Ames & Endicott, JJ., absent.
    A city, which has for compensation granted the right to erect a booth on one of its public squares, for the use and exhibition of an animal, is not liable for an injury occasioned by the animal frightening a horse, while exercising upon the highway outside of the booth.
    Tort. The declaration alleged that the owners of a certain animal, known as the Sacred Ox, were licensed by the defendant to erect a booth in a public square of the city, and to occupy the same for the use and exhibition of the said animal for the consideration of $2.50 per day; that the ox then and there emitted an offensive odor in its nature obnoxious to horses and cattle, frightening them, and causing them to become unmanageable ; that the ox was also of an uncouth and strange shape and appearance, and was caparisoned in a gaudy and strange manner, so that he was an object of terror to horses and cattle: all of which the defendant well knew; that, while the owners of the ox were so licensed, the plaintiff, with his bread-cart and horse, was lawfully travelling upon the public highway, the horse being well broken and kind, and being driven by a safe and experienced driver, and when near the booth met the ox, which was being led back and forth for his usual exercise, which the defendant well knew; that the horse was then and there frightened by the said odor, and the said frightful appearance and caparison of the ox, and ran away, to the injury of the said horse and cart; that the plaintiff and his driver used due caution, but the defendant did not use due caution.
    The defendant demurred to the declaration, assigning as cause of demurrer that it did not set forth a legal cause of action.
    The Superior Court sustained the demurrer; and ordered judgment for the defendant. The plaintiff appealed to this court.
    
      D. L. Withington & E. W Cate, for the plaintiff.
    
      D. Saunders & C. G. Saunders, for the defendant, were not called upon.
   By the Court.

At the time of the accident, the ox was not in the place for the use of which the city received compensation, nor in the charge of any agent of. the city; and the city is not responsible for the injury occasioned by the ox frightening the plaintiff’s horse while both were travelling upon the highway. Barber v. Roxbury, 11 Allen, 318, 321. Pierce v. New Bedford, ante, 534. Collingill v. Haverhill, 128 Mass. 218.

Judgment affirmed.  