Campbell v. Kearney , 45 How. Pr. 87 ( 1873 )

By the court, Loew, J.

It appears that, on a warm day m the month of" June, 1871, the defendants’ horse, in the act of brushing the flies off his body, and while being driven along Sixth avenue, nearly opposite to the plaintiff’s place of business, got one of the reins under his tail,' which caused him to become restive, and to move backward, thus coming in contact with the plaintiff’s horse and wagon, at that time standing in the street, close to the curbstone, whereby the latter horse was frightened and ran away, in' consequence of which it sustained injuries which resulted in its death two days thereafter.

blow, although after a careful perusal of all the evidence in the case, I am not altogether satisfied that the injury complained of was caused by reason of the carelessness or negligence of the defendants’ employe, who drove the horse on the occasion referred to, yet, on the other hand, 1 do not think that the judgment should be disturbed by an appellate tribunal.

On the trial one of the plaintiff’s witnesses, who saw the occurrence, testified that he is in the habit of driving horses, and that a horse can be managed notwithstanding he has his tail over one of the reins, and further that the defendants’ driver might have stopped the plaintiff’s horse ftom running away.

In this latter view he was' corroborated by' the testimony of another witness, who also saw the accident and was examined on the part of the plaintiff.

This evidence was sufficient to carry the case to the jury, and they having by their verdict found that the defendants’ employe was guilty of negligence, I do not think that we would be warranted in holding, as matter of law, that he was not, whatever our own views might be on the subject.

I also incline to the opinion that, in order to reach a correct conclusion whether, in a particular case, a party who leaves a horse standing in a public thoroughfare, without being fastened or attended by any one, is guilty of negligence; the disposition and habits of the animal, the place where and the length of time it is left standing, as well as other surrounding circumstances, must be taken into consideration.

I therefore think that the question whether or not the plaintiff was guilty of contributory negligence was one of fact, which was properly left to the jury for their determination (Park agt. O’Brien 23 Conn., 339).

The judgment of the court below should be affirmed.

Daly, Oh. «/., and Robinson, J., concurred.