
    Mary A. Cook vs. Inhabitants of Montague.
    Franklin.
    September 15. —16, 1874.
    Wells & Morton, JJ., absent.
    An object in a highway, with which a traveller does not come in contact or collision, and which is not an incumbrance or obstruction in the way of travel, is not to be deemed a defect, for the reason that its bright appearance causes a horse to take fright, in consequence of which he momentarily escapes from the control of his driver, and causes damage.
    Tout to recover damages for a personal injury sustained by the plaintiff by reason of a defective highway.
    Trial in the Superior Court, before Brigham, C. J., who reported the case for the consideration of this court as follows: “ At the trial the plaintiff offered evidence of the following facts: The defect alleged in the declaration consisted of a stone within the location and wrought part of a highway in the defendant town; the stone had been split from a boulder on the side of said way by the surveyor of highways of the defendant town, and temporarily deposited in a ditch which was within the wrought part of said way, at a point in the same where said way was wide enough for two ordinary carriages to pass abreast, without coming in contact with the stone. Opposite to the stone, on the line of the location of the highway, was a railing, and outside of it a steep descending embankment; the highway was hilly and built on the side of a hill, and the plaintiff was ascending it, when her horse, driven by a female companion, took fright at the bright appearance of the freshly split part of the stone in the ditch, when he was within twenty-five feet of the stone, and backed and sprung suddenly to the right, and entirely about, and the carriage in which the plaintiff was riding was thereby overset and the plaintiff thrown out of the same upon the ground, and seriously injured. Thereupon the driver jumped out of the carriage, and succeeded in immediately stopping the horse as he was descending the hill. Neither the horse, carriage or the plaintiff, when thrown upon the ground, came in contact with said stone. The horse was gentle and easily controllable, the driver skilful and careful, and the buggy and harness sufficient, and the horse was properly harnessed, and the plaintiff and the person driving were exercising ordinary care at the time of the accident described.
    “ The presiding judge ruled that the facts in evidence, if proved, would not authorize a verdict for the plaintiff, and that upon these facts and their legal effect this action could not be maintained. Thereupon, by the request and upon the agreement of the parties, the evidence and facts are reported to the Supreme Judicial Court, judgment to be entered in the Superior Court for the defendants, if the aforesaid ruling of the Superior Court is sustained; otherwise, the plaintiff is to have a new trial in the Superior Court.”
    
      W. S. B. Hopkins, for the plaintiff.
    This case comes within the principle of Lund v. Tyngsboro, 11 Cush. 563. It is distinguished from the cases where the accident resulted from the unmanageableness of a frightened horse, and its likeness to Lund v. Tyngsboro is recognized in the case of Cook v. Charlestown, 98 Mass. 80. So also the cases where the accident has happened during a momentary loss of control are in principle like this. Babson v. Rockport, 101 Mass. 93. The case of Horton v. Taunton, 97 Mass. 266, well illustrates the difference between the case of a frightened horse becoming unmanageable and this case.
    
      A. De Wolf, for the defendant.
   Gray, C. J.

There was no evidence that the horse came, or was in any danger of coming, in contact with the stone. It was the brightness of the stone, which was the cause of the fright of the horse that resulted in the injury to the plaintiff. There was therefore no defect in the highway for which the town was liable in this action. Keith v. Easton, 2 Allen, 552. Kingsbury v. Dedham, 13 Allen, 186. Cook v. Charlestown, 13 Allen, 190, note, and 98 Mass. 80. Judgment for the defendant.  