29 Barb. 218 | N.Y. Sup. Ct. | 1859
This is an action ex delicto, for exploding, a fire cracker under the horse of the plaintiff while traveling upon one of the public streets in the. city of Poughkeepsie, whereby the horse became frightened and fell down and died. If the death of the horse resulted from the wrongful act of the defendant, infancy is no protection. He is as fully liable for the damages as if he had been of full age.
Hor can there be any doubt that the act of the defendant was wrongful and unlawful. The plaintiff was in the rightful use and enjoyment of the public highway, passing from his own home in the town of Stamford to the city of Poughkeepsie, upon business or pleasure, or both. The road was created for these uses, almost solely; and the plaintiff arid all others had the right to pass over it without interruption or annoyance of any kind. The streets of á city, and highways every where, are not unfrequently appropriated to the uses of exploding fire crackers and similar contrivances. Such acts are nevertheless wrongful. They are tolerated and not authorized, and those engaged in committing them assume the responsibility of all the bad consequences which ensue. Any injury to the persons of individuals, any injury to property animate or inanimate, which result thereby, create a liability on the part of the wrongdoer to compensate the sufferer.
The question whether the defendant was requested by the plaintiff not to explode the cracker before the horse began to reel and fall, was much disputed at the trial. The evidence was quite contradictory. It was not important, however, in any view. If the act was done after the defendant was requested ' to desist, it would undoubtedly show that-the boy was thought
The real question litigated at the time was upon the cause of the death of the horse. The proof showed that the defendant threw the lighted cracker under the horse, where it exploded; that the horse appeared much frightened, sheared towards the sidewalk, reeled and fell, and almost immediately expired. He was proved to have been, up to that time, in good health, was 18 years of age, and had traveled from Stamford, a distance of twenty-two miles, in five hours, the morning he died, which was the 4th of July, and which was a cool day for the season of the year. Some of the witnesses thought he died from appoplexy, and some from fright or fear. Benjamin S. Wilber, a physician of forty years’ practice, said that sudden fright often results in death—immediate death. Fright, he says, sometimes produces appoplexy. Bobert Jackson, a horse farrier of twenty-five years’ standing, thought the horse died of appoplexy caused by over-driving, and he thought that'fright or fear would not result in appoplexy, but would produce what he calls palpitation. The theory of the plaintiff upon the trial was, that the horse died of sudden fright caused by the fire and explosion of the cracker; while the theory of the defendant was, that his death resulted from over-driving in warm weather. Ho over-driving seems to have been proved; and it did appear that up the time of the explosion the horse appeared in good health, and then became excessively frightened, staggered, reeled, fell down and died. Whose province (it may be asked) was it to determine between the theory of the plaintiff and that of the defendant in regard to the death of the animal ? It was an issue involved in some doubt, certainly; and there was evidence upon both sides, and in favor of both views of the accident. Was it the province of the court, or that of'the jury, to decide? It. was - a single naked question of fact, unmingled and unembarrassed
Lott, Emott and Brown, Justices.]
■The judgment of .the county court should be reversed, and that of the justice’s court affirmed.