Opinion by

The facts in this case are practically undisputed. The only question is whether the testimony shows that the defendant might have been guilty of such negligence as to warrant the submission of that fact to the jury. The defendant’s duty was to keep its road in a good safe condition. It bad a right to deposit outside of the traveled track of the road material used in making repairs providing the materials were so arranged that they were not from their unusual appearance likely to frighten an ordinarily trained horse. It was the duty of the .company to repair this bridge. It had a right to pile the old plank taken from the bridge as they did at the side of the road. It had the right to leave it there on Christmas and until the morning after Christmas when this accident occurred. The only question for the jury, therefore, was whether the planks were so negligently piled or placed as to frighten a well trained road horse. This was the theory upon which the question was tried, and the view taken by the learned judge of the court below in submitting the case to the jury. Was there sufficient testimony to justify the submission of that question? The testimony of Kinsey, a witness called for the defendant and corroborated by Hall, a witness for the plaintiff was that the six planks taken from the old bridge were laid in two piles of three planks each alongside of the road and away from the traveled track. Hall, one of the plaintiff’s witnesses, passed after the planks had been piled, and testifies that they were placed as testified to by Kinsey and adds, “ that they would not have frightened an ordinarily quiet horse the way they were lying when he saw them.” Lanahan, the plaintiff, testifies when he *385passed about four o’clock in the morning Ms horse took fright at the place where the planks were placed and that “the planks were piled up against the fence, some standing straight and others kind of slanting.” This was the only evidence of negligence. The testimony that when the timber was left at the roadside they were regularly and orderly placed was uncontradicted. There was no evidence of their subsequent displacement by any one with the knowledge or consent of the defendant. So far as the testimony discloses they may have been displaced bjr some trespasser or by the wind. Unless it was done by the defendant or some one authorized by it, it is not liable. The fourth point of the defendant should have been affirmed, and a verdict directed for the defendant.

Judgment reversed.