Hollaran v. City of New York

Defendant’s team of horses, attached to a street sweeper and unattended by a driver, were running away on Third avenue, in the borough of Brooklyn. The plaintiff’s intestate attempted to seize the reins and stop the horses, but was carried under the sweeper and killed. There are two questions: (1) Whether the fact of the horses running way is of itself sufficient evidence that the defendant was negligent; (2) whether there was such imminent danger to life as justified the undertaking.

[1] The defendant’s proposition is that the fact of a team of driverless horses running through a busy street in a city is consistent with the hypothesis that they escaped from a driver using requisite care, and that the burden is on the plaintiff to negative such care. It is abnormal for horses without a driver to travel in a public street, and it is none the less so if they are running away. Horses are required to be attended or hitched, because experience teaches that under such conditions their escape is exceptional and contrary to the usual order of events. Where, then, they are found loose and unattended, the primary inference is that the attendance or fastening that commonly precludes escape was absent. It is true that experience also shows that animals escape the mastery of prudent and skillful custodians, but such happenings are anomalous. The question, then, is what inference should be drawn from a phenomenon that deviates from the general, and falls into the exceptional, experience. The general truth is that hitched and attended horses remain secure, but exceptions arise. Why should we infer that the general rule does not prevail, and that the exception is present? If the owner of the horses asserts that his case comes within the exception, as in analogous cases, he has the burden of showing it. He should in that case show that he was not culpable in keeping them, inasmuch as they traveled in violation of common and safe usage. I conceive that one incumbering a street to the injury of those lawfully using it has no presumptive right to immunity, and yet such would be the case if the owner need not account

The authorities are not in accord on this question, nor do I attempt to reconcile decisions. In this court it has been decided that the fact of horses running unattended in the street is sufficient evidence of negligence; that is, that thereby a prima facie case is presented.. The rule was definitely stated in Kelly v. Adelmann, 72 App. Div. 590 , 76 N. Y. Supp. 574 . It is suggested that the decision rests, not upon reasoning, but upon the authority of Pearl v. Macaulay, 6 App. Div. 70 , 39 N. Y. Supp. 472 , and Doherty v. Sweetser, 82 Hun, 556 , 31 N. Y. Supp. 649 ; and that the facts in neither case make it authority for the rule stated. The facts in the second case are somewhat different, but the rule in Kelly v. Adelmann is held distinctly. The decision ■ follows the expressions in Unger v. Forty-Second Street, etc., R. R. Co., 51 N. Y. 497 , 500. The appellant prefers the decision in Gootwald v. Bernheimer, 6 Daly, 212 . The opinion of Judge Joseph F. Daly approves of the rule for which appellant contends. There is also reference to an apparent approval of Gootwald v. Bernheimer and its holding in McGahie v. McClennen, 86 App. Div. 263 , 83 N. Y. Supp. 692 , but it was upon the point “that the mere running away of a team of horses does not necessarily imply negligence on the part of the driver ,” who was driving at the time. There is also other authority for the present decision. Hummell v. Wester, Brightly, N. P. (Pa.) 133; Gannon v. Wilson, 18 Wkly. Notes Gas. (Pa.) 7 (in the last two cases the horse was running on the sidewalk); Gorsuch v. Swan, 109 Tenn. 36 , 69 S. W. 1113 , 97 Am. St. Rep. 836 . See, also, Strup v. Edens, 22 Wis. 432 , and Elliott’s Roads and Streets, § 842.

[2] It is also questioned whether plaintiff’s decedent was justified by impending danger to persons in the street and by the situation presented in exposing himself to the peril of attempting to stop the horses. The horses were running in a measurably busy street, and there was ample opportunity for harm to come to some one, although the danger was not at the moment imminent to a definite person. In Gibney v. State, 137 N. Y. 1 , 33 N. E. 142 , 19 L. R. A. 365 , 33 Am. St. Rep. 690 , a father jumped in a canal to save his child. In that case the relation of the parties was sufficient to prompt the deed, which resulted, not only from a sentiment of affection, but also from a sense of duty, or, as the court said, it was "natural and instinctive.’’ But the principle does not rest upon such relation, for in numerous instances the rescuer was a stranger to the endangered, as, for instance, in Muhs v. Fire Insurance Salvage Corps, 89 App. Div. 389 , 85 N. Y. Supp. 911 . Nor is it necessary that the person in peril should be incapable by age of appreciating his danger, as in Eckert v. Long Island R. R. Co., 43 N. Y.

The judgment and order should be affirmed, with costs. All concur.