31 N.Y.S. 649 | N.Y. Sup. Ct. | 1894
This action was brought to recover dam-
ages suffered by the plaintiff, he having been run over in the street by a horse. The evidence in this case showed that a horse belonging to one Dolman, and which had been hired by the defendant, and used by him during the day, drawing coal off a canal boat into the yard of the defendant, in the evening ran out of the yard, with no harness or halter upon him, and, colliding with the plaintiff, injured him severely. This action was brought to recover damages for such injuries. Upon the case being submitted to the jury, no evidence having been offered upon the part of the defendant, a verdict was rendered in favor of the plaintiff. It is urged that it was error to submit the case to the jury, upon the ground that there was no proof of negligence upon the part of the defendant in allowing this horse to be at liberty in the public street; and this question is brought up by an exception to the charge, the court haA'ing instructed the jury that, in the absence of explanation upon the part of the defendant, they had a right to impute negligence from the fact of the horse being in the street without harness, without halter, and unattended. It is urged that it is necessary for the plaintiff to show some act of omission or commission upon the part of the defendant by reason of which the horse got into the street unattended. It is further urged that it is not shown how the horse got on the street,—whether he started away without cause, or broke avvay, or under what circumstances he started off; and that such proof does not meet the requirements of the laAV in regard to the burden of proof in respect to negligence. And our attention has been called to various cases Avhere this question has been discussed. It has been held that leaving horses unfastened in a public street is undoubted negligence (Norris v. Kohler, 41 N. Y. 42); and our attention is also called to cases in which it has been held that the mere fact of horses running away does not necessarily impute negligence. But in those cases it appears that the horses were properly attended, and attempted to be controlled. But we are cited to no case holding that negligence is not imputed where a horse is found loose