circumstances. If he did not exercise such care, then the want of it so as to amount to contributory negligence is matter of defence, and is upon the defence to show. (Twenty-second assignment of error.) That the plaintiff cannot recover, because she was unlawfully on the public road on Sunday. Refused. (Twenty-third assignment of error.) Verdict for the plaintiff for $1868, and judgment thereon. Whereupon the defendants took this writ, assigning for error, inter alia, the admission of plaintiff's offers of evidence, and the refusal of defendants' offers, the refusal of defendants' points, and the charge of the Court as above. W. T. Davies and Williams (Angle and Ellsbree & Son with them), for the plaintiffs in error. The right of an abutting property owner to occupy a portion of the public highway is equal and co-ordinate with the public use of the easement, and is not subordinate and subservient thereto. 2 Dillon on Mun. Corp., 679, 681, ?? 581, 585. Clark v. Fry, 8 Ohio, 358. The injury October 6, 1884. THE COURT. for which the. present action was brought, was occasioned in a peculiar and unusual manner. The plaintiff and another, were riding in a carriage along a public road, in the open country, at about eight o'clock in the evening of a day in the month of July, when suddenly the horse drawing the carriage reared, plunged a few steps forward, fell to the ground on the side of the road and instantly died. In falling he upset the carriage, which fell upon the plaintiff and caused the injuries for which the suit is brought. The falling and death of the horse caused the overthrow of the carriage; but what was it that caused the falling and death of the horse? This is perhaps the true problem of the controversy, but the cause does not seem to have been tried with much reference to its solution. There was an object standing by the side of the road, and quite near to the beaten track, at the place where the horse fell, and it seems to have been assumed that the horse took fright at the sight of this object, and this caused him to rear and fall and die. But this is an unsatisfactory theory. We do not know whether horses ever die from mere fright. No evidence on the subject was received. Some testimony was offered by the defendants, to the effect that the horse could not All cases to the contrary apply to the duty of have died of fright, and that his death was due supervisors in keeping the road itself in repair. to some other cause; but it was rejected by the Rodney A. Mercur and John F. Sanderson learned Court below, and that rejection consti(Edward Overton, Jr., with him), for defend-tutes the substance of several assignments of O'Linda v. Lathrop, 21 Pickering, 292. R. R. Co. v. Taylor, 15 WEEKLY NOTES, 37. ant in error. error. No post-mortem examination of the horse As to the right of an abutting property owner was made, and the cause of justice was thus deto obstruct the highway prived of what might have proved to be a most Erie v. Schwingle, 10 Harris, 388. important aid in the determination of the catasGrier v Sampson, 3 Casey, 183. Born v. Plank Road Co., 12 WEEKLY NOTES, 284.trophe. No experts in farriery were examined. Dillon on Mun. Corp., 1058, 1032; vol. ii. 722, 8 No veterinary or other medical authorities were invoked, and the case is really barren of testimony from which a satisfactory theory of the 730. Wood on Nuisances, 262, 255. The placing obstructions in the highway has animal's death may be derived. It is notorious been held to create liability in— Young v. New Haven, 39 Conn. 435. that horses, like human beings, die suddenly, and of similar diseases. Indeed one of the medical witnesses testified to that effect in this case. If there were facts which indicated that this horse died from some sudden attack of dis ease, or opinions of intelligent witnesses to that [ject in this case was calculated to frighten an effect, based upon facts observed by themselves, ordinarily quiet and well-broken horse, or an we think they should have been received in evi- ordinarily well-broken and road-worthy horse. dence. We think that both the witnesses, The same idea was embodied in the answers to Dougherty and Ferguson, gave evidence which points, and in the general charge, where the sufficiently qualified them to answer the ques- thought was expressed in the more comprehentions proposed to them, but which were rejected. sive form that if the object was calculated to Dougherty had had much experience with horses frighten horses, without any qualification as to for twenty years, had owned quite a number, their disposition, it would be negligence to exowned five at the time he was examined; he had pose it to view. In this we think there was seen this horse shortly before his death, the same error. afternoon, and had observed and described his condition, saw him immediately after his death, saw the object which was supposed to have frightened the horse, and testified as to whether it was calculated to frighten horses. In view of all this we think the questions proposed to be put to him should have been allowed, the first one for the reasons above indicated, and the second for the reason hereafter stated. Ferguson was a blacksmith, had shod horses of many different kinds for over fifty years; had always handled horses since he was big enough;" had seen horses frightened frequently; it was offered to prove by him that he had seen horses fall, and thrown to the ground many times, and then to inquire whether the mere fall of this horse could have killed him, having reference to the ground where he fell, the witness having seen it. We think he was sufficiently qualified to answer this question, and his opinion should have been received, and also on the subject whether a horse could have been frightened to death by the object at which this horse was supposed to have taken fright. Had the horse run away, and in that manner upset the carriage there would have been more force in the objections to this testimony. But such was not the fact. He died instantly, and the cause which produced his death probably occasioned his fall, and it was his fall that upset the carriage. Now the actual physical fact or condition, which produced his death, cannot be known, and the moral condition, so to speak, is a mere matter of theory which requires illustration by the opinions of persons having experience in such matters. For these reasons we sustain the fourth, seventh, and eighth assignments of error. Another question arose on the trial which is presented in several assignments. It relates to the character and qualities of the horse against whose fright precautions are required. It was contended by the defendant that the animal should be an ordinarily quiet and well-broken horse. This was denied by the plaintiff, who contended that an object should be such as would not frighten any kind of horses, whether quiet and well-broken, or skittish and shy. The Court adopted the latter view, and refused to allow the defendants to inquire whether the ob There is a certain right of property owners, which we will discuss presently, to leave objects on or along a highway, in front of their premises, temporarily, and for special purposes, and where that right exists, it is of equal grade, before the law, with the right of travellers to journey on the highway. Hence in such cases the obligations of each class to the other are equal, and not superior, the one to the other. Each is bound to ordinary care toward the other, in the exercise of their respective rights, but not to care which is extraordinary. In the more particular application of this doctrine to a case like the present, we think the correct rule is, that a property owner who has a lawful right to expose an object, on or along a public highway, within view of passing horses, for a temporary purpose, is bound only to take care that it shall not be calculated to frighten ordinarily gentle and welltrained horses. And this seems to be the tenor of the authorities in the cases in which there has been a judicial expression on the subject. Thus in the case of Mallory v. Griffey (4 Norr. 275), which was an action to recover damages resulting from the fright of a horse, occasioned by a large stone along the highway, our brother STERRETT said: "It was claimed that the stone was an object calculated to frighten an ordinarily quiet and well-trained horse, and that the defendant was chargeable with negligence in leaving it on the highway. This presented a question of fact which was properly submitted to the jury with the instruction that the plaintiffs could not recover unless they found, from the evidence that a stone or rock such as was placed in, or near, the road by the defendant, was, in and of itself, an object calculated to frighten an ordinarily quiet and well-broken horse?" " In Morse v. Richmond (41 Ver. 435), it was held, that a town is liable for such accidents by fright as are the natural result of its neglect to remove any object of frightful appearance, so remaining deposited on the margin as to render the whole road unsafe for travel with horses of ordinary gentleness. In Foshay v. Glen Haven (25 Wis. 288), the Court said: "We adopt upon this subject the rule established by the Supreme Courts of Vermont, New Hampshire, and Connecticut, that objects within the limits of a highway naturally calculated to frighten | anticipated, and is governed by no known rules. horses of ordinary gentleness, may constitute In many instances a spirited road horse will pass such defect in the way as to render the town lia- in safety an obstruction that a quiet farm horse ble, even when so removed from the travelled path as to avoid all danger of collision." In Ayer v. Norwich (39 Conn. 376), CARPENTER, J., said: "In conclusion we are satisfied that the law is and ought to be so that objects within the limits of a highway which in their nature are calculated to frighten horses of ordinary gentleness, may be nuisances, which make the highway defective within the meaning of the statute." will scare at. A leaf, a piece of paper, a lady's shawl fluttering in the wind, a stone or a stump by the wayside, will sometimes alarm even a quiet horse. I may mention, by way of illustration, that the severest fright I ever knew a horse to feel, was caused by the sunlight shining in through the windows of a bridge upon the floor." If a farmer may not have a barrel of cider, a bag of potatoes, a horse power, a wheelbarrow or a wagon, standing on his own premises by the side of a highway, except at the risk of having his whole estate swept away in an action for damages occasioned by the fright of an unruly horse, the vocation of agriculture will become perilous indeed. These views lead us to the conclusion that the Court below was in error in its treatment of this subject, and we therefore sustain the first, third, fifth, sixth, eleventh, twelfth, fourteenth, and fifteenth assignments. We see no objection to allowing proof of specific cases of fright at this particular object and therefore do not sustain the second assignment. In Card v. City of Ellsworth (65 Me. 547), the Court said: "How far, if at all, the Court would be inclined to admit the doctrine adopted in this discussion beyond the facts now before us, we cannot now decide. But in no case like this can a liability of the town exist, unless the object of fright presents an appearance that would be likely to frighten ordinary horses, nor unless the appearance of the object is such that it should be expected by the town that it naturally might have that effect, nor unless the horse was at least an ordinarily kind, gentle, and safe animal, and well broken for travelling upon our Another subject of complaint by the defendants public roads." The rule is stated in the same is the restrained and limited manner of defining way in the cases cited by the defendant in the defendants' rights adopted by the Court, and error. Thus in Bartlett v. Hooksett (48 New their subordination, when stated, as rights of inHamp. 18), SMITH, J., says: "But if objects ferior grade to those of the travelling public, and are suffered to remain (except for the most tem- therefore to those of the plaintiff. The defenporary purposes) resting upon one spot, or con- dants are farmers. They own a considerable fined within any particular space, within the body of land lying on both sides of the public highway, and are of such shape or character, as road at the place where the accident happened. to be manifestly likely to frighten horses of For some time before and after the accident they ordinary gentleness, injuries caused by the fright were engaged in whitewashing their fences, exthus occasioned may properly be said to happen tending a considerable distance along the road. by reason of the obstruction or insufficiency of The road at this place was upwards of forty-five the highway, unless the person placing or con- feet in width, the road-bed actually travelled tinuing those objects upon the highway was, in being twenty-two feet wide. The distance from so doing, making such use of the highway as was the track to the fence on the south side was 131⁄2 under all the circumstances reasonable and pro- feet, and in this space there was a slope downper." To the same effect are Young v. New wards of 2 feet, a little steeper near the road Haven (39 Conn. 435); Dimock v. Suffield (30 Conn. 129). It seems to us it would be difficult to state a rational rule on this subject unless it is accompanied with this limitation. For if persons are bound to guard against frightening skittish, vicious, timid, and easily frightened horses, it will not be possible to state any limit of precaution which will be a protection against liability. The reason is that there is nothing as to which it can be definitely said that such horses will not frighten. On this subject the language of our brother PAXSON in the recent case of The Pittsburgh Southern Railway Co. v. Taylor (15 WEEKLY NOTES, 37, and Leg. Int. of Feb. 29, 1884) is particularly apposite. He said: "The frightening of a horse is a thing that cannot be than for the remainder of the distance. The surface of the road and slope was composed of small gravel. Next the fence was a raised foot-path, about four and a half feet wide, and next to the path was a ditch four feet wide, and four-tenths of a foot below the travelled track. In this ditch stood a small truck on wheels, about 22 by 3 feet, the wheels being twelve to fourteen inches high, and on the truck was a small barrel about fifteen inches in diameter and two feet three inches high. A pole or stick projected above it, the heighth of which above the barrel is differently stated by the witnesses from a few inches to two or three feet, and a small piece of carpet covered the pole and barrel. The outside of the barrel was streaked with lime, and the barrel itself contained the lime with which the whitewashing was done. This is the object which, it is claimed for the plaintiff, caused the horse to frighten, and thereby produced his fall and death. It was moved along the road as the work progressed, and was left standing in the ditch from Saturday night to Monday morning, covering the Sunday when the accident occurred, partly filled with lime prepared for use. fuel is necessary, a man may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stones, bricks, lime, sand, and other materials, may be placed in the street, provided it be done in the most convenient manner." The foregoing case was an indictment for a The learned Court did instruct the jury that nuisance, where the question was simply whether the defendants had the right to use any part of the obstruction in question was a nuisance; but the highway for the purpose of building and im- the case of Palmer v. Silverthorn (8 Cas. 65), proving their fence, provided they did not inter- was an action to recover damages for the broken fere with the rights of travellers; and that, if the leg of an ox which had wandered among a parcel lime tub was calculated to frighten horses, it of building materials, placed by the defendant in would be negligence to use it, because all citi- the highway in front of his premises while erectzens had a right to pass without having their ing a building. Here a practical question of horses frightened by any obstruction placed on liability for damages arose, and it was deterthe highway. The learned Judge also said that mined for the defendant, because, although his the public had a right to travel over every part materials were an obstruction to the street, they of the highway; that everything between the were lawfully there, and he was not responsible fences was highway, and the public had the right if he left sufficient room for the travel of the to use any part of it they saw fit. It seems to street. The case of Commonwealth v. Passmore us this is not a sufficiently precise designation of was cited and approved, and a similar case from the relative rights of the property owners and 1 Denio, 524, was quoted, in which the same the public. As we understand the law, there is doctrine was declared. THOMPSON, J., said the an absolute right in a property owner to use a necessity of the case was probably the foundaportion of the public highway for certain pur- tion of the rule, "but the practice has become poses for a temporary period and in a reasonable a custom of such long standing that it is regarded manner, and this right may be exercised in dero- as law, and the right will not be defeated by an gation of the right of the travelling public. Thus investigation into the necessity of so doing in in 2 Dill. on Municipal Corporations, § 581, the any particular case. It is a right to be exercised writer says: "We have heretofore shown that under responsibility for all injury arising from an the primary purpose of a street is for passage and unreasonable or negligent use of it." In Maltravel, and that unauthorized and illegal obstruc-lory v. Griffey, supra, which was an action for tions to its free use come within the legal notion damages for an injury inflicted by a horse taking of a nuisance. But it is not every obstruction, fright at a stone placed in the highway as a part irrespective of its character or purpose, that is of some building materials to be presently used, illegal, even although not sanctioned by any ex- we affirmed the Court below in charging that the press legislative or municipal authority. On the defendant was not liable, although the horse took contrary, the right of the public to the free and fright, merely because the stone was in the highunobstructed use of a street or way is subject to way. Mr. Justice STERRETT said: "The jury reasonable and necessary limitations. The car-were properly instructed that the defendant might riage and delivery of fuel, grain, goods, etc., are legitimate uses of a street, and may result in the temporary obstruction to the right of public transit. So the improvement of the street or public highway itself may occasion impediments to its uninterrupted use by the public. And so of the improvements of adjoining lots by digging cellars, by building, etc.; this may occasion a reasonable necessity for using the street or sidewalk for the deposit of material. Temporary obstructions of this kind are not invasions of the public easement, but simply incidents to, or limitations of it. They can be justified only when and only so long as they are reasonably necessary." 7." place building material on a portion of the highway, and permit the same to remain there for a reasonable length of time for the purpose of erecting his barn on the line of the road, without on that account alone incurring liability for injuries sustained by persons passing along the road, provided ample room was left for the free passage of vehicles and animals; but he would be liable for injuries occasioned by an unreasonable or negligent use of the highway." All this doctrine was repeated by the present Chief Justice in the case of City of Allegheny v. Zimmerman (14 Norr. 287), who further said: "But the right to partially obstruct a street does not appear to be limited to a case of strict necessity, it may extend to purposes of convenience or ornament, provided it does not unreasonably inter In the case of Commonwealth v. Passmore (1 S. & R., on p. 219), TILGHMAN, C. J., said: "No man has a right to throw wood or stones into the street at his pleasure. But, inasmuch as | fere with public travel." plaintiff on the road on Sunday is not a defence Judgment reversed and venire de novo awarded. Jan. '84, 91. C. K. Z. January 24, 1884. Combs and Hankinson's Appeal. Wills_Charitable gifts-Requisites of-Act of April 26, 1855-What constitutes a disinterested witness. The substance of the doctrine is that the mere scope to cover all the conditions of liability; nor exercise of the right of obstruction for a lawful the twenty-third, because the presence of the purpose, imposes no liability to pay for damages resulting therefrom. It must be an unreasonable or negligent exercise of the right, in order to impose liability. To say that a man may lawfully deposit bricks and lumber on the highway, in front of a lot on which he is erecting a building with those materials, and yet if their presence has a tendency to frighten horses, and some oversensitive horse does take fright at them and run away and cause damage, the person depositing the materials is guilty of negligence, and shall pay the damage, is merely giving a right with one breath and taking it all away with another. In practical effect such a right would be no right at all. Any pile of bricks, stones, sand, lumber, or other building material, in a street, has a tendency to frighten horses, and in almost any community there could always be found some horses that would actually take fright at seeing them. But that circumstance alone will not take away the right to deposit them in such a place. There must be some abuse of the right, some unusual An employé of a charitable institution to which propand extraordinary mode of arranging the mate- erty has been bequeathed is a "disinterested witness," to rials, such as will probably produce fright with the will within the meaning of the Act of April 26, 1855 ordinary gentle and well-trained horses, before | (P. L. 322). it can be fairly said liability arises. So in the A "credible witness," within the meaning of said Act, present case. The defendants were whitewash-is one who is not disqualified from testifying. ing their fences, a perfectly proper and legitimate thing to do. The fence extended along a great length of the public road, and the process of whitewashing necessarily occupied considerable time. In this respect there does not seem to be anything unreasonable in the case. They used a small barrel to contain their material, the whole size of the vessel and its supporting truck rection, and was read to her before she affixed her mark. not exceeding 22 feet by 3 feet superficially, and 3 feet perpendicularly. It is difficult to see any-bate of a will states that the witnesses were sworn, it is When the jurat to the Register's certificate of the prothing unreasonable or negligent in using such an immaterial that the word "oaths" or "affirmations" is apparatus. It stood by the side of the travelled omitted in the body of the certificate. track, and made no encroachment upon it of any kind. It therefore did not obstruct the highway so as to interfere with the travel upon it. It seems to us the jury should have been told that unless there was something of an unusual and extraordinary character in the structure and appearance of this apparatus, which would naturally tend to frighten horses of ordinary gentleness and training, it was not negligence to use it, and its reasonable use for no longer time than was fairly required, along the highway in whitewashing the defendants' fences, would not subject defendants to liability, even though some horses might or did take fright at seeing it. These views require us to sustain, as we do, the tenth, eleventh, twelfth, thirteenth, fourteenth, sixteenth, eighteenth, nineteenth, twentieth, and twenty-first assignments. We do not sustain the We do not sustain the twenty-second, because it is of too limited a When a testatrix, who is unable either to read or write, executes a will in favor of a charitable institution by setting her mark thereto, it is unnecessary that the will be read to her in the presence of the subscribing witnesses. Other persons may testify that the testatrix knew the contents of the instrument. The executrix of a will, such as above, is a competent witness to testify that the will was drawn by testatrix's di An issue devisavit vel non will not be granted, if, upon the whole evidence upon both sides, a verdict against the will would not be permitted to stand. Appeal of George Combs and Isaiah Hankinson from a decree of the Orphans' Court of Philadelphia County, dismissing their petition to annul the letters testamentary and the probate of the alleged will of Lucy Taylor, deceased, and refusing to grant an issue devisavit vel non to test the validity of said alleged will. unable The facts of the case were briefly as follows: Lucy Taylor, an aged colored woman, to read or write, died on February 14, 1880, at the Home for Aged and Infirm Colored Persons, having first made her will, dated October 29, 1879, in which she left all her property to the said home. said home. Previous to this, while she was in the service of Mr. A. D. Cash, she had made a |