56 N.Y.S. 428 | N.Y. App. Div. | 1899
This action arose out of an accident which occurred to the plaintiff while driving along a street city of Yonkers, upon which the defendant was also driving, in the same direction, a short distance ahead of the plaintiff and his wife. According to the plaintiff’s testimony, he approached the defendant’s vehicle while the defendant was walking Ms horse, and undertook £© pass the defendant on the right. Thereupon, he says, the defendant “started his horse up suddenly and got ahead of me, and then turned his horse’s head up against my horse’s head, and the horse got excited and ran into the curbstone, and the wagon was turned over, and both of us were thrown out on the sidewalk.” In another place the plaintiff says: “At the time I attempted to pass Mr. Richardson., there was room for two or three wagons to pass between him and. the curb. When I attempted to pass, he started his horse up suddenly, drove ahead of me, and then turned around at right angles, and drove me onto the sidewalk. After he did that, he drove away, and I could see nothing of him until I got up.” The defendant gav<a very different account of the accident, and ascribed it solely t© a collision between the plaintiff’s wagon and the curb at a bend En the road. He swore positively that he never touched the plaintiff, and that he was more than 40 feet ahead of him when the plaintiff upset. “I am positive,” he said, “that I didn’t touch him, and indidn’t touch me. It would not be possible for Mm to strike say wagon without overturning it.”
In charging the jury the learned city judge instructed them tkai if they determined the defendant’s story to be true, and that he nevestruck the body of Mr. Brennan’s horse, they must find a verdict Ee favor of the defendant. To this instruction an exception was duly-taken by counsel for the plaintiff, who asked the court to charge the jury that even if they should believe that Mr. Richardson's horse did not actually touch Mr.-Brennan’s horse, but still believed iba?. Mr. Richardson’s carelessness forced Mr. Brennan over against the curb, and that Mr. Brennan, in attempting to avoid him, wens against the curb and upset, they might render a verdict in favor of the plaintiff. In response to this request the learned judge said: “I decline to charge the evidence. The jury can draw their own conclusions.” And an exception was taken in behalf of the plaintiff to his refusal to charge as requested. I think this refusal wa-v erroneous, and that the plaintiff was entitled to have the jury instructed in accordance with his counsel’s request. The gravamen of the plaintiff’s complaint against the defendant was that the defendant, when the plaintiff was endeavoring to pass him, either willfully or negligently drove his own horse in such a manner as to fora-the plaintiff’s horse over against the side of the street and upsei his wagon. While the complaint does allege an actual collision In-tween the defendant’s horse and wagon and the plaintiff’s horse, that feature of the accident was mentioned only incidentally in the plaintiff’s testimony, and it was not until his cross-examination that hr stated distinctly that the head of the defendant’s horse touched tin head of his horse. Under the pleadings and the evidence, the casidid not necessarily turn upon the question whether there was actúa?
Judgment and order reversed, and new trial granted; costs to abide the event. All concur.