Lonergan v. Martin — 23 N.Y.S. 968

Majority

p. 968

LONERGAN v. MARTIN et al.

(City Court of New York,

General Term.

June 19, 1893.)

Headnote

Negligent Driving—Question for Jury.

Plaintiff’s testimony showed that, while driving along a street behind defendant, plaintiff had turned out, where there was sufficient room, for the purpose of passing. Defendant had then suddenly turned his horses against plaintiff’s, holding the latter from going forward, and striking one of them with a wheel. Held, tliat the questions of negligence and contributory negligence were for the jury.

p. 969

Appeal from trial term.

Action by James Lonergan against George W. Martin and others for injury to a horse. From a judgment dismissing the complaint, plaintiff appeals.

Reversed.

Argued before VAN WYCK and FITZSIMONS, JJ.

Christopher Fine, for appellant.

J. Stewart Ross, for respondents.

The plaintiff’s testimony shows that while driving along Hudson street, between Duane and Reade streets, just in the rear of the defendant’s team and truck, he turned out for the purpose of passing by and in front of defendant, having more than enough room to do so, and which he had a right to do. Defendant then, without warning, and when plaintiff’s horses were at his front wheel, suddenly turned his horses .against plaintiff’s horses, forcing them against an engine which was standing near the curb, held them there as if in a vice, then driving his horses ahead. His hind wheel passed over the right hind hoof of plaintiff’s horse, so injuring him as to cause his death. This testimony certainly entitled plaintiff to have the opinion of the jury as to whether or not defendant was negligent, and he free from contributory negligence, in the management of their-respective teams. It was error for the trial justice to dismiss the complaint. Judgment must be reversed, and a new trial ordered, with costs to appellant to abide event.