
    John Jerome Burns, Appellant, v. The Town of Farmington, Respondent.
    
      Negligence—a horse frightened by an irregular pile of timber within the bounds of a highway — notice thereof to the commissioner of highways —questions for the jury.
    
    In an action brought against a town to recover damages for personal injuries caused to the plaintiff who, while riding in a buggy drawn by one horse, was injured in consequence of the horse taking fright while passing an irregular pile of hub timber lying within about three feet of the beaten track of the town highway, it appeared that some ten or twelve cords of the timber had been piled within the bounds of the highway about February 28, 1897, and that, although a large part of it had been drawn away between the eighth and twentieth of 3farch, there was left on the evening of April sixth, when the accident occurred, the pile in question.
    
      A number of witnesses testified that horses described as gentle were frightened by this timber, while other witnesses testified that they had driven past it and that their horses were not frightened.
    The commissioner of highways knew of the existence of the obstruction between the tenth and twentieth of March, at which time he had funds in his hands for highway purposes, but he took no steps to have the timber removed.
    
      Held, that the evidence presented two questions of fact which should have been submitted to the jury:
    
      First, whether a man of ordinary intelligence and experience with horses and highways should have foreseen that this irregular pile of timber, lying by the roadside, was likely to frighten horses; and,
    
      Second, whether the commissioner of highways was negligent in permitting this timber to remain by the roadside from March 1 to April 6, 1897;
    That if both of these questions were found in the plaintiff’s favor, and he was free from contributory negligence, he would be entitled to a verdict;
    That the location, size and appearance of the pile of timber having been described by the witnesses, and photographs of the timber having been produced, the question whether it was likely to frighten horses was one for the jury to decide, and not one to be determined by the opinions of witnesses.
    
      Appeal by the plaintiff, John Jerome Burns, from an order of the Supreme Court, made at the Ontario Trial Term and entered in the office of the clerk of the county of Ontario on the 24th day of February, 1898, denying the plaintiff’s motion for a new trial made upon the minutes, the jury having rendered a verdict in favor of the defendant by direction of the court.
    
      
      Frcmk Rice, for the appellant.
    
      Walter H. Knapp, for the respondent.
   Follett J.:

This action was begun July 20, 189J, to recover damages for personal injuries caused, it is alleged, by the negligence of the defendant. About February 28, 1897, ten or twelve cords of hub timber ivere piled by its owner within the bounds of the public highway and near the traveled track thereof. Between the eighth and twentieth of March a large part of this timber was drawn away by the purchaser, but a portion of it ivas left lying in an irregular-shaped pile within about three feet of the beaten track of the liigliway until after April G, 1897. This timber consisted of round sticks varying in diameter from four inches to twelve inches, and was four feet and four inches in length.

About ten o’clock in the evening of April 6, 1897, the plaintiff was riding in a buggy, drawn by one horse shown to have been gentle, and while passing this timber the horse was frightened by it, overturned the buggy and severely injured the plaintiff. The evidence shows that this plaintiff was free from contributory negligence. Five witnesses testified that horses described as gentle were frightened by this timber when driven past it. On the other hand, eight or nine witnesses testified that they had driven past it and that then-horses were not frightened.

The defendant’s commissioner of highways lived within a mile and a half of the obstruction and saw it between the tenth and twentieth of March. At this time he had in his hands about $1,000 ■ of highway money, but took no steps to remove the timber or to compel the person who left it there to remove it.

At the close of the evidence the court directed a verdict for the defendant, to which direction the plaintiff excepted and moved for a new trial on the minutes, which was denied.

The court erred in directing a verdict for the defendant and in denying plaintiff’s motion for a new trial. .The evidence presented two questions of fact which should have been submitted to the jury : (1) Whether a man of ordinary intelligence and experience with horses and highways should have foreseen that this irregular pile of timber, lying by the roadside, was likely to frighten horses ? and (2) was the defendant’s commissioner of highways negligent in permitting this timber to remain upon the roadside from March 1 to April 6, 1897 ? Had both questions been found for the plaintiff he, if he were free from contributory negligence, would have been entitled to a verdict.

The rule laid down in Tinker v. N. Y., O. & W. R. R. Co. (71 Hun, 431; 92 id. 270) and Stewart v. Porter Mfg. Co. (13 N. Y. St. Repr. 220) is applicable to the case at bar.

Four witnesses sworn for the defendant were permitted to express their opinions that the pile of timber was not likely to frighten horses. This evidence was received over the objection of the plaintiff that the opinions of the witnesses were not competent. The location, size and appearance of the pile of timber were described by the witnesses, and photographs of the timber were produced, and the question whether it was likely to frighten horses was for the jury, and not a question to be determined by the opinions of witnesses. (Ferguson v. Hubbell, 97 N. Y. 507; Lawson Ex. & O. Ev. 22.)

The order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Order reversed, with costs; verdict set aside and a new trial ordered, with costs to appellant to abide the event.  