Sleeper v. Worcester & Nashua Railroad

58 N.H. 520

Opinion

Clark, J.

If the plaintiff’s horse was the horse of a “ traveller”' when it went on to the defendants’ railroad it was rightfully in the highway ; and if it was rightfully in the highway the defendants were hound to fence against it. Giles v. Boston & Maine Railroad, 55 N. H. 552; Mayberry v. Concord Railroad, 47 N. H. 391; Chapin v. Sullivan Railroad, 39 N. H. 564; Cornwall v. Sullivan Railroad, 28 N. H. 161; Towns v. Cheshire Railroad, 21 N. H. 363; Woolson v. Northern Railroad, 19 N. H. 267. Whether the plaintiff’s horse was rightfully in the highway, and whether the plaintiff was in the exercise of due care at the time the accident happened, were questions for the jury. Elliott v. Lisbon, 57 N. H. 27; Varney v. Manchester, 58 N. H. 430; Cummings v. Center Harbor, 57 N. H. 17; Dumas v. Hampton, 58 N. H. 134; Hardy v. Keene, 52 N. H. 370; Baldwin v. G. T. Co., 40 Conn. 238; Ring v. Cohoes, 77 N. Y. 83. The court canot say there was no evidence upon these questions competent to be submitted to the jury, and the exceptions must be sustained and the

Nonsuit set aside.

Stanley, J., did not sit: the others concurred.