69 N.Y.S. 96 | N.Y. App. Div. | 1901
• The plaintiff brings this action as the administrator of the goods, etc., which were of Walter S. Mills, deceased, demanding judgment against the defendants for “ carelessly, negligently and wrongfully ” causing the death of his intestate. The learned court at Trial Term dismissed the complaint, on motion, at the close of plaintiff’s evi- ' dence, and from the judgment entered, appeal comes to this court.
The rule is well established that in reviewing a judgment for defendant entered upon a nonsuit, plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence given and to every legitimate inference warranted by the proofs, and we are to examine the matter under this favorable rule for the plaintiff. The defendants, as copartners, operate a coal yard in Hew York city, having a building on the north side of One Hundred and Thirty-sixth street, between Fifth and Lenox avenues, in the rear of which they keep their horses. Late in the afternoon of the. 25th day of ¿July, 1896, two horses belonging to the defendants were either turned loose or escaped from defendants’ stables, getting into this rear yard, from which one of them, a gray horse, passed out into the highway, and from thence to an open lot adjoining defendants’ coal yard on the west, where some two dozen or more children were at play, and one of these, the plaintiff’s intestate, was run over and killed. The horse appears from the evidence to have been in high spirits, and was running from the time of leaving the defendants’ inclosure until the accident, a space, of a few seconds. The elaborate research and great learning which have been brought to bear in support of the judgment, and the very able argument of plaintiff’s counsel, present the question whether the defendants’ servants and employees were negligent in permitting this horse to be at large and beyond their control under the circumstances. The plaintiff’s "intestate was a child in good health, six and one-lialf years of age •; he was at play with other
The duty which the defendants owed to the plaintiff’s intestate was to use reasonable care in the management and control of the horse which worked this wrong, and while we have been afforded a very thorough .discussion of wild and domestic animals, and the degree of care and responsibility imposed upon their owners, we are of opinion • that the owner of a domestic animal is bound to take notice of the general propensities of the class to which it belongs, and if such propensities are of a nature to cause- injury, he must' anticipate and guard against them (Hammond. v. Melton, 42 Ill. App. 187), and if the animal be given an opportunity to exercise the propensity, through the negligence of the owner, he will be liable to persons injured without fault on their part. (Thomas Neg. 508, citing Whart. Neg. § 907.) It cannot matter, there being no intervening cause, that this accident did not occur upon the highway; the wrong of the defendants, if there was a wrong, consisted in letting their horses loose under the circumstances by which they were surrounded, and where it was reasonable to anticipate that injury would result. The plaintiff’s intestate, in so far as the evidence discloses, had as much right upon the vacant lot
In the case at bar, if the horse had broken into the lot without any negligence on the part of- the defendants, thus becoming a trespasser for which the owners would be answerable to the owners of
The suggestion is made, in support-of the judgment, that the law requires that the injury must proceed so directly from the wrongful act that according to common' experience and the usual course of events it might, under the particular circumstances, have reasonably been expected (Jex v. Straus, 122 N. Y. 293, 301, and authorities cited), and that something of this certainty- is lacking in the present case, but an examination of the authorities discloses no case in which the rule has been held applicable to facts bearing any analogy to those here in evidence.. The rule, as we have already shown by authorities, does not require that the particular accident should have been anticipated; it is satisfied if any danger was reasonably to have been anticipated from the conduct, and it cannot be said that it was unreasonable to suppose that a horse running loose in the highways, with access to an open plot-, which appears to have, been grown up to grass in some measure at least,, would injure those who might get in his pathway. Such accidents are common to the experience of the world, and negligence in the control of animals capable of working injuries to others is universally recognizéd as giving a cause of action to those who suffer through such negligence. (Benoit v. Troy & Lansingburgh R. R. Co., 154 N. Y. 223, 227.)
We are of opinion, therefore, that it was error on the part of the court at Trial Term to grant the motion for nonsuit, and to refuse the request of the plaintiff to go to the jury upon the issues. ■ While we do not care- to suggest that there was error in the exclusion of evidence, we are of opinion that the plaintiff, under properly framed questions, is entitled to greater latitude in showing the surroundings of the parties, as bearing upon the degree of care proper to be exercised, than was permitted upon the original trial.
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment reversed and new trial granted,, costs to abide the event.