Case 11 — PETITION ORDINARY —

September 28.

#### Clark, &c., v. Hart.

APPEAL FROM MONTGOMERY CIRCUIT COURT.

TO AUTHORIZE A RECOVERY FOR INJURIES SUSTAINED BY THE frightening of one’s horse through the carelessness or negligence of the defendant in placing an obstacle (such as a wagon-bed) in or near a passway, the petition should state facts showing a right in plaintiff to use the passway, and also, showing that the thing causing the fright was so near the passway as to import negligence.

*32A. T. WOOD & SON POR APPELLANTS.

Permitting objects likely to frighten horses to remain upon or in close proximity to a passway is negligence. (Cooley on Torts, p. 630; Wharton on Negligence, sec. 107; Dillon on Mun. Corp., sec. 1007; Sanders on Negligence, pp. 61, 63; Derby v. Hill, 4 Com. B. N. S., 556, 27 L. J. C. P., 318; Jacob’s Fisher’s Digest, vol. 6, p. 9372; Billman v. Indianapolis, &c., R. Co., 76 Ind., 166; s. c., 40 Am. Dec., 236; Foshay v. Town of Glenhaven. 25 Wis., 288; s. c., 3 Am. Rep., 73; Ayer v. City of Norwich, 39 Conn., 376; s. c., *12*Am. Rep., 396.)

Z. T. YOUNG FOR APPELLEE.

Appellee had the right to leave the wagon-bed on the land that he had rented, although near the passway, and if appellant’s horse became frightened thereat and ran off and tore up the buggy as charged, that fact does not give appellant a cause of action against appellee. (Piollet v. Simmers, 106 Pa. St., 95; s. c., 51 Am. Rep., 496; Pittsburg S. Ry. Co. v. Taylor, 104 P. St., 306; s. c., 49 Am. Rep., 580; Mallory v Griffey, 85 Pa. St., 275; Macomber v. Nichols, 34 Mich., 212; s. c., 22 Am. Rep., 522.)

JUDGE GUFFY

delivered the opinion of the court.

This action was instituted by John Clark and wife against A. S. Hart, seeking to recover on account of injuries sustained by reason of appellee leaving a wagon-bed so near a pass-way that it scared appellee’s horse and caused it to run away.

The material allegations of the petition are as follows: The plaintiffs say that on the 9th of August, 1893, they resided on their own premises and that the only pass-way they had to get to the turnpike to go to and from Mt. Sterling, the county seat of Montgomery county, was through the land of Nimrod Byrd, over which land there was a passway out bj' the house of said Byrd; that the defendant Hart had that part of the said Byrd’s land rented through and over which said passway ran, over which the'se *33plaintiffs had a right to pass to get to the public road leading to Mt. Sterling; and that the defendant Hart on or about said 9th of August, 1893, wrongfully, negligently and carelessly placed a blue wagon bed in the weeds near said pass-way, that ran through said land, and over which these plaintiffs had to pass, and negligently and carelessly set said wagon bed so near said passway that while plaintiff. Julia, was passing along said passway, it frightened plaintiff John Clark’s horse which was hitched to his buggy, and driven by his said wife, Julia Clark, and said horse ran off with said buggy and ran against the fence, threw plaintiff Julia Clark out of said buggy and against the fence. The petition also-shows that said buggy was destroyed and plaintiff Julia, severely injured.

Defendant filed a demurrer to the petition, which demurrer was sustained by the court, and plaintiffs failing to plead further the petition was dismissed. To reverse that judgment this appeal is prosecuted.

In order to authorize a recovery for injuries sustained by the carelessness or negligence of a defendant by reason of the placing of obstacles in or near a passwav, such as referred to in this action, the petition should state facts showing a right in plaintiff to pass along or use the road traveled, as well as to show that the thing causing the fright was so near the passway as to import negligence. The averment in the petition as to the right of the plaintiff to use this passway is but the conclusion of the pleader, and the same maybe said of the averment as to where the wagon bed was placed. A horse might be scared by a wagon bed at so great a distance from a road that a prudent and careful person could not reasonably expect such a result. The petition shows that defendant was.in the legal possession of the land through *34which the plaintiff was passing, and no fact is alleged showing that plaintiff had a legal right to be there.

The demurrer was properly sustained. The judgment of the court below is therefore affirmed.