Carena v. Zanmatti — 82 A.D. 11

Majority

p. 11

Matthew Carena, by Domenico Carena, his Guardian ad Litem, Appellant, v. Albert Zanmatti and Elise Zanmatti, Sued as Angelina Zanmatti, Doing Business under and by the Firm Name and Style of A. Zanmatti & Co., Respondents.

Headnote

Negligence—injury to one employed on a delivery wagon from the kick of a vicious horse.

In an action to recover damages for personal injuries it appeared that the plaintiff was employed by the defendants to accompany a delivery wagon and guard its contents in the absence of the driver; that, while the plaintiff was upon the seat of the delivery wagon performing his duties, the horse attached to the wagon kicked and broke one of the plaintiff's legs.

Evidence was given tending to show that the defendants knew the vicious character of the horse and there was no proof that the plaintiff, had knowledge thereof.

Held, that a question of fact was presented as to whether the defendants had performed the duty incumbent upon them of furnishing the plaintiff a reasonably safe place in which to do his work, and that it was error for the court to dismiss the complaint.

Appeal by the plaintiff, Matthew Carena, by Domenico Carena, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 21st day of October, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

. George H. Hart, for the appellant.

Isaac Josejohsorbj for the respondents.

This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff by reason of defendants’ negligence. The particular act of negligence alleged was that the defendants hired the plaintiff, a boy thirteen years of age, to go with a delivery wagon and see that nothing was taken from it in the absence of the driver ; that attached to the wagon was a vicious horse and, while the plaintiff was performing the work assigned to him', the horse kicked and broke one of plaintiff’s legs.

p. 12

At the close of plaintiff’s case the complaint was dismissed and he has appealed from the judgment thereafter entered.

We think the court erred in dismissing the complaint. Three witnesses were produced, each of whom testified as to the previous vicious character of the horse: (I) Comparato, who testified ■ that he had seen the horse kick many times when attached to the wagon, and he had also seen one of the defendants leave their store and take the horse by the bridle and endeavor to stop him; (2) Parrel., who testified ■ that lie-had also seenthe horsé, while standing in front of the defendants’ place of business and attached to the wagon, frequently do the same thing ; and (3) Carena, who testified that one of the defendants had told him that the horse was wild and they would have to put him in with another' horse to break him in and “ get him tamed down.”

If the testimony of these witnesses were true, then, clearly, a question of fact was presented as to whether the defendants had performed the duty which rested upon them in furnishing the plaintiff a reasonably safe place to do his work. There was no dispute but what the plaintiff was seriously injured, and when he was injured he was in'the place where the defendants put him, viz., upon the seat of the delivery wagon. Nor was there any evidence to the effect that the plaintiff was informed as to the vicious character of the horse or put upon his guard as to the danger which he encountered in this respect. Under such circumstances we are of the opinion that it was for the jury to say whether the - defendants were liable for the damages sustained by the plaintiff.

. The judgment, therefore, must be reversed and a new trial ordered, with costs to the-appellant to abide the event.

Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ.; concurred.

Judgment reversed, new trial ordered, costs tq appellant to abide event