71 N.Y.S. 593 | N.Y. App. Div. | 1901
The disposition of this case in the court below was clearly erroneous. The court directed a verdict for the defendant, and the judgment entered thereon cannot stand if there is any evidence requiring a submission to the jury. In determining that question, the plaintiff is entitled to have that view of the evidence adopted which is most favorable to him. The action is brought to recover damages for the alleged wrongful acts of the defendant in the abuse of a horse belonging to the plaintiff, which the defendant hired, and returned in a dying condition. The occurrence was on January 6, 1900. The horse was hired and taken from plaintiff’s stable by two of defendant’s servants at about half-past 7 o’clock in the morning. There is no pretense even that he was not then in perfect condition. He was brought back to the plaintiff’s stable at 2 o’clock the next morning by some of the defendant’s servants, who disappeared when the stable door was opened. The horse ran into the stable, and fell upon the floor. Veterinary aid was summoned at once, but, in spite of persistent treatment and attention, the animal died at 5 o’clock on the afternoon of January 7th. The plaintiff testified that the horse was hired for the day only, and was to be returned to his stable that night, viz. the night of the 6th. One of the defendant’s two men who did the hiring testified that nothing whatever was said about when the horse was to be returned, while the other man did not testify on the subject at all. As a matter of fact, after being driven all day, the horse was placed at night in the defendant’s stable, and, when he was found at 2 O'clock the next morning to be in an apparently dying state, was taken, without care or treatment, to the plaintiff’s stable, and left there in the manner stated. The plaintiff testified that when the horse was returned to him he had not been properly cared for.
It can scarcely be disputed that upon these facts the case was for the jury, and should not have been disposed of by the magistrate as presenting only a question of law. If the jury believed the plaintiff as to the tenure of the bailment, the defendant’s act in retaining the horse overtime amounted to a conversion, and rendered it liable without further fault. But, independently of that question, the interest of those who testified to their good treatment of the horse required that their credibility be submitted for the jury’s consideration, and prevented their evidence from overcoming, as matter of law, the strong and natural inferences of neglect and ill-treatment which flow from the absolutely undisputed facts herein detailed. The judgment appealed from should be reversed, and a new trial ordered; costs to abide the event. All concur, except GOODKICH, P. J., who dissents.