Libbey v. Inhabitants of Greenbush

20 Me. 47

Opinion

The opinion of the Court was by

Sheplet J.

To enable the plaintiff to recover by virtue of the provisions of the statute, c. 118, <§> 17, he must, prove an injury, and that it was occasioned by a defect or want of necessary repair of the highway. The principal difficulty consisted in proving the injury. The plaintiff contended, that the death of the horse was occasioned, or hastened by his breaking through the covering and falling in the highway ; whthe the defendants contended, that it was occasioned by disease. The plaintiff had not fully established his right to recover so long as this question was left in doubt. In the case of Stokes v. Saltonstall, 13 Peters, 181, the plaintiff had proved conclusively, that the coach was overturned, and that the -person had suffered an injury from it; and the Court considered, that the legal presumption would be, that it was occasioned by the negligence of the driver. But it would not be a legal or safe presumption, that every horse that broke through the covering of a road was killed or injured by it.

Exceptions overruled.