
    (31 Misc. Rep. 583.)
    NASON et al. v. WEST.
    (Monroe County Court.
    May, 1900.)
    
      1. City Street—Use of Automobile—Frightening Horses—Liability.
    The use, on a narrow city street, of a motor carriage of crude construction, though not differing materially from the steam automobiles in common use, except that its smokestack extends to the top of the canopy in the rear, and has sinuations through which the escaping vapor and exhaust steam pass, will not subject the person operating- such vehicle, in a careful manner, to liability for damages ensuing from a horse becoming frightened at such conveyance, and running away.
    S. Same—Automobile—Warning of Approach.
    An automobile propelled by steam generated by a gasoline burner is not within the prohibition of Highway Law (Laws 1890, e. 568; Laws 1891, c. 212; Laws 1892, c. 686) § 155, forbidding the use of any carriage, vehicle, or engine, propelled by steam, upon any public highway, unless a person is sent one-eighth of a mile in advance to warn travelers of its approach.
    Appeal from municipal court of Rochester.
    Action by Fred Nason and others against Jonathan B. West for ■injuries to plaintiffs’ horse and wagon. From a judgment for plaintiffs, defendant appeals.
    Reversed.
    John B. M. Stephens, for appellant.
    George D. Bud, for respondents.
   SUTHERLAND, J.

Plaintiffs’ horse and delivery wagon were standing on Tracy Park, Rochester, October 18, 1898, the horse being hitched by a strap attached to a 30-pound weight. The roadway of Tracy Park is 15 feet from curb to curb. Defendant entered Tracy Park at Alexander street with his motor carriage, and, as he approached, plaintiffs’ horse, who was headed towards Alexander street, became frightened at defendant’s outfit, and ran away, damaging the wagon and harness to the amount of $17.45. The horse received no injury, except such as comes from fright. The municipal court, in addition to the $17.45, allowed $25 damages for deterioration in value of the horse, supposed to follow from the increased propensity to take fright, induced by its experience on this occasion. In Mitchell v. Railway Co., 151 N. Y. 107, 45 N. E. 354, it was held that mere fright, caused by negligence, does not give to the person frightened any cause of action, no matter how serious the fright may be in its after effects. It is argued with much force that, for the same reasons of public policy which were controlling in the Mitchell Case, the item of $25 damage to this horse for fright should have been disallowed. Furthermore, it seems this horse had run away twice before, and it would require a very nice insight to determine, without speculation or mere guesswork, what effect this scare had upon its permanent psychic equipment.

But, passing that, a more important question is presented,— whether any recovery should be had. This motor carriage was made by defendant, and, as described by the witnesses and shown in the photograph exhibits, while somewhat crude, it does not differ very materially in general appearance from the steam automobiles which are coming into common use.- It runs on four wheels with pneumatic tires, has a canopy top, and is about the size of a one-horse delivery wagon. The motive power is steam, generated by a gasoline burner. A smokestack, connecting with the combustion chamber, extends to the top of the canopy in the rear. There are sinuations in the stack through which the escaping vapor and the exhaust steam pass, and the design is that the exhaust steam shall be condensed inside the stack. This stack would seem to be the main point of dissimilarity in appearance between defendant’s machine and other motor carriages operated by steam. The horse has no paramount or exclusive right to the road, and the mere fact that a horse takes fright at some vehicle run by new and improved methods, and smashes things, does not give the injured party a cause of action. As Judge Cooley says, in Macomber v. Nichols, 34 Mich. 212:

“When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods; and it cannot be assumed that these will be the same from age to age, or that new means of making the way useful must be excluded merely because their introduction may tend to the inconvenience, or even to the injury, of those who continue to use the road after, the same mariner as formerly.”

If the defendant’s motor carriage is practicable for the purpose of travel, and the noise and vapor caused by its use are kept within reasonable limitations, and are no greater than are fairly incident to the use of motor carriages which are found adapted to the needs of the general public, then I cannot see how the defendant can be held liable, in the absence of evidence that, at the particular time complained of, the carriage was operated carelessly. If one should find it desirable to go back to primitive methods, and trek along a city street with a four-ox team and wagon of the prairie-schooner variety, it would possibly cause some uneasiness in horses unused to such sights. Yet it could not be actionable, in my opinion, if a runaway should result, provided due care were shown not unnecessarily to interfere with the use of the highway. Horses may take fright at conveyances that have become obsolete as well as at those which are novel; but this is one of the dangers incident to the driving of horses, and the fact cannot be interposed as a barrier to retrogression or progress in the method of locomotion. Bicycles used to frighten horses, but no right of action accrued. Holland v. Bartch, 120 Ind. 46, 22 N. E. 83; Thompson v. Dodge, 58 Minn. 555, 60 N. W. 545, 28 L. R A. 608. Electric street cars have caused many runaways. Automobiles operated without steam, by storage batteries or by gasoline explosion engines, running at a moderate speed, may cause fright to horses unused to them; yet the horses must get used to them, or the driver take his chances. The evidence in this case shows that defendant was running his motor at a moderate rate of speed, and, as it approached the horse, he slowed up. Defendant and his wife, who was with him, say they came to a full stop-before the horse started to run, but this is contradicted by plaintiffs’ witnesses, who admit he slackened speed. It will not do to say that it is proper to run any kind of a contrivance upon the street, in which, persons may be carried. A machine that would go puffing and snorting through the streets, trailing clouds of.steam and smoke, mighi be a nuisance; but this is not such a case. It cannot be said that the defendant’s machine is such a departure in its construction or mode of operation from other steam motor carriages, which experience has lately shown to be entirely practicable for street use, as to make it a nuisance, although, because of the present novelty of horseless carriages, horses may take fright at its approach. There was no proof of an unusual amount of vapor escaping at the time of the accident, nor of any amount of noise greater than is ordinarily heard in running a machine of that character; and to sustain this judgment is to condemn the defendant’s motor carriage, and all others •operating in a similar way, and to declare them impracticable and unfit for use upon the streets. There is a statute against the use •of any vehicle propelled by steam in public streets (except on railroad tracks), unless a person is sent at least one-eighth of a mile in advance to warn travelers of its approach. Highway Law, § 155; Pen. -Code, § 640, subd. 11. This statute, though broad enough to cover the motor in question, was passed before automobiles were in use, and it was directed against traction engines, which are ponderous and noisy affairs, and have been the cause of much litigation. Mullen v. Village of Glens Falls, 11 App. Div. 275, 42 N. Y. Supp. 113. The provision of the law that the forerunner must precede the steam carriage by at least an-eighth of a mile shows that it was not drawn with steam automobiles in mind, of the kind used in this case; and, if a man had been sent that distance ahead, it would have been of no value to plaintiffs as a warning, for their driver would not have met him, so it cannot be said the accident occurred because of defendant’s failure to comply with the law referred to. The temporary inconvenience and dangers incident to the introduction of these modern and practical modes of travel upon the highway must be •subordinate to the larger and permanent benefits to the general public, resulting from the adoption of the improvements which science and inventive skill have perfected. The judgment appealed from is reversed.

Judgment reversed.  