111 N.Y.S. 54 | N.Y. App. Div. | 1908
To hit the horses with a whip to stir them up was not negligence. But thelearned trial Judge sent the caseto the jury to find whether it was negligence to hit the horse with the horsewhip while he was turning; because if he kicked out in that position he would kick toward the line. How whether it was negligence depends on whether in due care and foresight it was to be anticipated that a horse might kick out behind when given a severe cut of a horsewhip. A horse that will do it is an exception, and the rule of due care does not ordinarily require us to regulate our conduct on exceptions. But that is not always so if the exception is likely to occur, as proved by experience, and should therefore be anticipated. All sorts of new horses were constantly coming to the defendant’s mart for sale, and-out of so many, ever changing, it was to be expected
The judgment should be affirmed.
Present — Jenks, Hooker, Gaynor, Rich and Miller, JJ.
Judgment and order unanimously affirmed, with costs.
