91 N.Y.S. 556 | N.Y. App. Div. | 1905
The plaintiffs bring this action to recover for the board of defendant’s horse, shoeing, etc., the claim aggregating $139.30. The defendant admitted the amount of the claim with the exception of about $27, but put in a counterclaim for $150 for an injury to his horse while in the plaintiffs’ keeping. The horse, which appears to
The rulé appears to be well settled that' where property is in the exclusive possession of a bailee for hire and is injured in a way that ordinarily does not occur without negligence, the burden of proof' is 'Upon the bailee to show that the injury was not occasioned by his negligence. (Collins v. Bennett, 46. N. Y. 490; Wintringham v. Hayes, 144 id. 1, 6, and authorities there cited.) The evidence disclosed that the plaintiffs had the horse in their possession for hire; that the defendant drove the horse on a Saturday afternoon, returning the same to the stable at about five o’clock in the evening, and, that the animal was all right' at that time. The horse .was placed in a box stall at the request of the defendant, and on the following morning the animal was found to have been injured as ■stated above. While the evidence was not as direct as .might have beén desired, there appears to be no reason for believing that the hoi’se was injured during the afternoon .of Saturday ; one of the plaintiffs, who .saw the horse when it was brought in, although interrogated, was not willing to testify that the horse was hot in proper condition, and the defendant testifies to a general examination of the horse, to standing in front of the animal and feeding him sugar, and he says that there was “ nothing the matter with the horse ” at that time. The defendant showed that there was a, nail projecting from a bar across a window in the box stall, and that this nail stood out about half an inch, and that the horse'might have been injured by coming in contact with this nail, but as the plaintiffs.offered no evidence to explain the injury, we are df the opinion that it is not important whether this was, in fact,, the cause of the accident. The defendant had established a prima facie case when he had showed that he placed the horse in the hands of the plaintiffs in good condition, and that the animal was injured in a manner which was not likely to occur without negligence, and it was then, for the plaintiffs to show that the accident occurred without negli- . gence on their part.
While there was a sharp conflict of. evidence upon the question of the disputed items of the plaintiffs’ bill, the evidence' does not preponderate in either direction sufficiently to justify this court in
The judgment appealed from should be affirmed, with costs.
Hirschberg, P. J., Bartlett and Hooker, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.
