152 N.Y.S. 245 | N.Y. App. Div. | 1915
Lead Opinion
Upon the 24th day of June, 1912, the plaintiff was injured in attempting to stop a runaway team belonging to the defendant, upon a public highway in the city of Schenectady. The team was attached to a coal delivery wagon and was running away with the empty wagon along the street upon which were play- ■ ing some children, among which children were two of plaintiff’s own. As he swears, in order to protect those children he ran into the street and caught hold of the running horses, and finally brought them to a stop; in so doing he was injured, and
Plaintiff was entitled to have this case submitted to the jury both upon the question whether these horses were at all secured before they started to run, and also whether that security was adequate. It is true that the complaint seems to charge negligence only as to an entire failure to fasten the horses. But the case was tried upon both theories, without an objection having been once taken that the pleadings were insufficient. Hot having taken the objection at the time the respondent is not in a position now to urge that without an amendment of the pleading a recovery would not be authorized upon this specific ground that such fastening as was proven was insufficient. The fact that the horses were running away without a driver called for an explanation from the defendant. Prima facie that fact alone would seem to be some evidence of negligence upon defendant’s part.
If this be true, the only proof that the horses were fastened by two weights was the evidence of the driver and the evidence of the brewery man who was cleaning the coal. The evidence of the. driver is under suspicion, both by reason of his being in the employ of the defendant and also by reason of the fact that if the horses were not fastened he was the man responsible for the accident. The jury might well have found that the brewery man who received the coal, being down in the coal cellar, was not in a position to see whether these weights were attached to the horses or that he would not naturally have taken notice of such a fact. The plaintiff voluntarily placed himself in danger to avoid possible accident to some children from a runaway team. The facts of the case should be viewed fairly in his effort to recover damages for the injury resulting therefrom from the owner of the team,' which was thus permitted to create the dangerous situation.
The judgment should, therefore, be reversed, with costs to appellant to abide event, and a new trial granted.
All concurred, except Woodward, J., dissenting, in opinion, in which Kellogg, J., concurred.
Dissenting Opinion
The complaint in this action alleges that the plaintiff was, seriously injured in an attempt to stop a runaway team, which menaced the lives and limbs of his own and other children playing in the highway where the team was approaching, and that “all of said injuries so sustained as aforesaid, were caused solely and wholly by reason of bhe fault, carelessness, recklessness and negligence of defendant, in that said team of horses ran away in consequence of the said defendant leaving said horses standing on the street unattended and without any person in charge of same and without being fastened or held in any way or manner, and without having any weight attached to said horses or to the bit or rein of said horses, and that the said horses were unruly and fractious, and had on previous occasions, as plaintiff is informed and verily believes, ran away, and that at the time of said injuries there was no one in charge of said team of horses and no person or persons was or were in said coal wagon.” This allegation of the complaint was denied by the answer, and the burden of proving the allegations was thus upon the plaintiff. The trial resulted in the court dismissing the complaint upon defendant’s motion, and the plaintiff appeals to this court.
The plaintiff urges upon this appeal that the court erred in granting the motion for a nonsuit, and that he was entitled to go to the jury upon the question “as to whether the rope offered in evidence, which it was claimed was attached to the weight on one of the runaway horses, was a fit and proper rope and sufficient in strength to properly secure these horses and hold a weight of eighteen pounds.” It is a sufficient justification for the ruling of the court upon this point that no such issue was tendered. The allegation of negligence was that the defendant had left “ said horses standing on the street unattended and without any person in charge of same and without being fastened or held in any way or manner, and without having any weight attached to said horses or to the bit or rein of said horses, and that the said horses were unruly and fractious, and had on previous occasions, * * * ran away.” No suggestion is here made that the defendant had used improper rope or fastening; the allegation was that it
The judgment appealed from should be affirmed, with costs,
Kellogg, J., concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.