133 N.Y.S. 249 | N.Y. App. Div. | 1912
The defendant Barney Levy appeals from a judgment' in plaintiff’s favor, in an action to recover for personal injuries received in consequence of the kick of a horse which he is alleged to own. The defendants gave no testimony; The plaintiff was nine years old at the time of the accident. With several children of about his own age he was playing upon a sidewalk. The horse Was led up the street by one of .the appellant’s employees, who 'at intervals struck the horse With a chain, causing him to rear and jump. On reaching a point opposite the place where the children were playing, the horse either broke loose or pulled appellant’s employee upon the sidewalk, where he-struck or kicked the plaintiff, inflicting the’ injuries complained of. The appellant contends that there is no evidence sustaining a finding of negligence in the management of the horse, and that the submission of that question to the jury-was error. The testimony, of several witnesses is that the direct cause of the horse going upon the walk was its effort to get away from the brutality of the person leading it. This evidence was sufficient to present to the jury the question as to whether the defendant’s agent acted properly, and as a reasonable and prudent man should, in the management of the horse, having in view possible, danger to persons upon the sidewalks of the street, and I regard the evidence sufficient to support the conclusion they reached.
The appellant also complains that the evidence does not warrant the finding that he was the owner óf the horse. Plaintiff’s mother testified that, in -a conversation on the evening of the day of the accident, the appellant referred to the horse as his and told her she should get a physician to treat the child and she would be paid. The appellant was present ía court during the trial, but was not called to deny having made this admission or that the horse was in fact his, or that the person in charge of it was his servant. ■
The only other question requiring consideration is the contention that the plaintiff was improperly permitted to get before the jury proof that the appellant was insured as to any injury done by his horse, and that his counsel was wrongly allowed to comment upon this fact when addressing the jury...
The judgment and order must be affirmed, with costs.
Thomas and Woodward, JJ., concurred; Jenks, P. J., and Burr, J., dissented.
Judgment and order affirmed, with costs.