188 A.D. 237 | N.Y. App. Div. | 1919
This is an action for damages for personal injuries sustained by the plaintiff by being bitten by a horse on the 11th day of January, 1916, when he was about nine years of age. The defendant company, as its name implies, was engaged in the electrotyping business and in delivering the products of its factory to its customers in the borough of Manhattan, New York. In January, 1911, one McGuire made an oral contract with it by which he was to furnish a horse, a delivery wagon and his own services in delivering its goods from eight a. m. until five-thirty p. m. each working day and to receive in consideration therefor the sum of twenty-seven dollars per week. McGuire then owned the horse in question, which is described as a bronco, and as a Canadian horse, and weighed between 900 and 1,000 pounds. The appellant Butensky and his brother, who died during the pendency of the action, conducted a livery and boarding stable, and between the working hours from the time McGuire so entered the employ of the defendant company until after the accident they had full charge of the horse, at first under an arrangement with McGuire by which they boarded the horse, and during about three years prior to the accident as owners, having purchased the horse from McGuire and rented the use thereof to him for an agreed compensation of ten dollars per week. McGuire at first hired, but at the time of the accident owned, the delivery
I am of the opinion that the evidence adduced by the plaintiff, if believed by the jury, was sufficient to show the horse was vicious and to charge the appellant Butensky with knowledge of his vicious propensities. Ordinarily the question of scienter arises on testimony tending to show actual or constructive notice to the owner or notice to his servants or agents which is imputable to him. (Brice v. Bauer, 108 N. Y. 428; Gropp v. Great Atlantic & Pacific Tea Co., 141 App. Div. 372; 161 id. 859, 862; Niland v. Geer, 46 id. 194; Soronen v. Von Pustau, 112 id. 437; Twigg v. Ryland, 62 Md. 380; Gooding v. Chutes Co., 155 Cal. 620; 1 R. C. L. 1092, § 35; Id. 1108, § 51; 3 C. J. 96, § 328.) Although McGuire was not in the employ of the owners of the horse, it has been clearly intimated, if not decided, in some cases, that the owner of a dog or horse is chargeable with knowledge of his vicious propensities , manifested to one in whose custody the owner has placed the animal (Earl v. Van Alstine, 8 Barb. 630; Soronen v. Von Pustau, 112 App. Div. 437; 3 C. J. 96, § 328, and cases cited); but it is not necessary to decide that point of law for in the case at bar the jury were warranted in inferring that a horse thus manifesting this vicious propensity would also manifest it about the stable and on the occasions when he was under the observation of the owners or their
Another point, however, is based on the reception of evidence relating to the question of damages. The only allegations of the complaint regarding the injuries are as follows: As a result thereof, plaintiff received personal injuries, has suffered bodily, and mental pain, and has been made sick, sore, lame and disordered; that plaintiff’s injuries consist among other things of injuries over his head, laceration of the scalp, severe injuries to the nervous system and shock, all of which will leave permanent results; that said injuries necessitated medical care and attention and will necessitate the same in the future; that said injuries necessitated the incurring of expenses therefor, and interfered with plaintiff in the performance of his lawful duties, and will interfere with him in the future.
The plaintiff in testifying with respect to his injuries said that his head felt dizzy for about two weeks after the accident; that afterwards he had dizzy spells for a time, and he said that after he was able to leave his bed, when he tried to read or study, “ I couldn’t see, there was all blue things in front of my eyes,” by which he meant “ a sort of blur,” and that he could not read and had to wear glasses, but had not required them before; that one of his eyes was “ turned ” and that he did not have the “ turn ” before the accident; that even
It is quite clear, I think, that the allegations of the complaint are not sufficiently broad to embrace the injuries consisting of the turning of the eye ball inwardly and to the eyesight, for the rule is now well settled that where there is an attempt to particularize the injuries, the general allegations are deemed limited thereby. (Keefe v. Lee, 197 N. Y. 68; Kurak v. Traiche, 226 id. 266.) The verdict was for $3,500 and there can be no doubt but that it was largely predicated on the loss of sight and the injury to the eye. It is contended that the appellants, having allowed the plaintiff to testify on these subjects -without objection, must be deemed to have waived any objection to the testimony. But the plaintiff made no motion to conform the complaint to the evidence thus received without objection, and from the subsequent rulings it is evident that the court was of the opinion that these injuries were embraced within the allegations of the complaint, for the record contains nothing indicating that the evidence subsequently objected to was received on the theory that the objection had been waived. If the court had intimated that the rulings had been made upon that ground, the appellants might have moved to strike out the testimony of the plaintiff on this point. But in view of the rulings they were warranted in assuming that such a motion would have been of no avail. If they had made such a motion, doubtless, it would have rested in the discretion of the trial court whether or not to grant it, since no objection was interposed to the testimony; but at most the appellants could only have been compelled to have submitted to the jury the evidence to which no objection had been made; and they were not precluded from objecting to having it sustained by the testimony of the physician and medical expert. This court would not be warranted, I think, in attempting to estimate the amount the jury allowed on account of the inadmissible testimony, and in sustaining the verdict in a reduced amount, even if the plaintiff were willing to stipulate a reduction.
Merrell and Philbin, JJ., concurred; Clarke, P. J., and Smith, J., concurred in result.
Judgment and order reversed and new trial ordered, with costs to appellants to abide event.