131 N.Y.S. 1048 | N.Y. App. Div. | 1911
The defendant appeals from a judgment entered upon a verdict and from an order denying a new trial. The action is for damages for the death of plaintiff’s intestate, who was employed by defendant and who died, as it is alleged, from a kick received from a vicious horse belonging to defendant. The deceased had been employed by defendant for some time as hostler and driver, and a part of his duty appears to have been to harness the horse or horses which he was about to drive. On December 24, 1907, he had harnessed a horse, and was in the act of leaving the stall when he was kicked. He lived until April, but there was evidence from which the jury might have found, as it did, that death resulted from the kick. The complaint was framed as if the action was brought under the Employers’ Liability Act (Laws of 1902, chap. 600), and a notice drawn or attempted to be drawn -under that act was served on defendant and admitted in evidence. Its admission was, as we think, erroneous, because the plaintiff’s cause of action did not rest upon the Employers’ Liability Act, but was one which was known to the law before the passage of that act, being an action for the wrongful act of-an employer in furnishing to the servant a dangerous instrumentality to work with after due notice of the danger. We cannot say, however, that the error of itself would have required a reversal of the judgment. A more serious question is as to the finding of the jury, under the instructions of the court, that the deceased did not assume the risk of injury. It was necessary of course, in order to recover at all, that plaintiff should show the vicious nature of the horse, and that it had before manifested a tendency to kick, and that this tendency was known or should have been known to defendant. Although the defendant produced witnesses to
The judgment and order must be reversed and a new trial granted, with costs to abide the event.
Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred. • •
Judgment and order reversed, new trial ordered, costs to appellant to abide event.