JUANITA M. BUTLER vs. GEORGE H. GRAVES

DONAHUE, J. An automobile driven by the defendant and a horse ridden by the plaintiff were in collision upon a public highway and injury to the plaintiff resulted. At the trial in the Superior Court before a jury there was a verdict for the plaintiff. The only exception of the defendant here presented is to the denial of his motion for a directed verdict, hence the verdict must stand if warranted upon any view of the testimony, Margeson v. Town Taxi, Inc. 266 Mass. 192, 194, except that the plaintiff is to be held bound by her own testimony as to her knowledge and her feelings. Laffey v. Mullen, 275 Mass. 277.

The testimony was sharply contradictory in material aspects but the record warrants the view of the evidence here presented. The accident happened in the night time. The road ran east and west, had a gravel surface and the travelled portion was about sixteen feet wide. The plaintiff's horse was proceeding westerly under control and trotting slowly on the northerly side of the road, three or four feet from the northerly edge. A companion, also on horseback, was riding directly behind. The defendant saw the two horses approaching when his automobile was seventy-five to one hundred feet away and on the southerly side of the road. It could have been found that the horses then and thereafterwards followed a straight course leaving the greater part of the width of the wrought highway free for the passage of the defendant's automobile but that he continued to drive on, left the southerly portion of the highway and came over to the side where the plaintiff was and there his automobile struck her horse throwing it back upon its haunches.

The plaintiff and the defendant as travellers on a public highway had equality of right to traverse the area thus dedicated to common use and were not restricted to particular portions of the wrought surface of the road. But with this equality of right went equality of obligation to use reasonable care to avoid a collision. With knowledge that the two riders were approaching but without compulsion by reason of other traffic, for there was none, or because of the condition of the surface of the roadway, for

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this did not appear to be abnormal, he drove his automobile, or permitted it to go over to his left side of the road and into collision with the plaintiff's horse. A finding of the jury that his conduct did not comply with his obligation to use care was not unwarranted.

Shortly before the accident the plaintiff had been riding on the south side of the road and while there saw the lights of the defendant's automobile shining over a hill up which it was coming. She could not then see the automobile itself but promptly crossed over to the north side of the road. She was riding on that portion of the highway in a westerly direction, her horse moving at a slow trot, three or four feet from, and parallel with, the north edge of the travelled surface when she first saw the approaching automobile at a distance of ninety or ninety-five feet. She testified that it came over to her side, straight toward her, at a speed which she thought was pretty fast. Her horse proceeded on the same course and at the same rate of speed up to the instant of collision. The defendant contends that the plaintiff failed to exercise adequate care because she did not slow down her horse, or stop or go even nearer to the edge of the road. As a traveller on a public highway she had the right to rely to some extent although not wholly upon the defendant's using proper care to avoid injuring her. Hutchinson v. H. E. Shaw Co. 273 Mass. 51. She had left the greater part of the width of the roadway available for use by the defendant and might rely to some extent upon the expectation that he would use that space for passage with safety to both and not ignore it and run into her horse. McGuiggan v. Atkinson, 278 Mass. 264, 266. Gauthier v. Quick, 250 Mass. 258, 261. The threat of actual danger came upon the plaintiff with some suddenness. The respective abilities of the parties to avert the accident in the seconds immediately preceding its occurrence were not the same. A horse cannot suddenly be manoeuvred with the same deftness and certainty as an automobile. Commonwealth v. Horsfall, 213 Mass. 232, 235. An attempt by the plaintiff in a few seconds to force her horse to the very edge of the roadway might result in the animal leaving the

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wrought area of the highway altogether with the danger incident to such an occurrence in the night time. Under the circumstances which might have been found to exist the jury was properly permitted to pass upon her conduct. A ruling of law that the defendant had sustained the burden of proving that the plaintiff failed to exercise the requisite care could not rightly have been made.

Exceptions overruled.