Mills v. Bunke

The plaintiff brings this action as the administrator of the goods, etc._, which were of Walter S. Mills, deceased, demanding judgment against the defendants for “carelessly, negli

The rule is well established that, in reviewing a judgment for defendant entered upon a nonsuit, plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence given, and to every legitimate inference warranted by the proofs, and we are to examine the matter under this favorable rule for the plaintiff. The defendants, as co-partners, operate a coal yard in New York City, having a building on the north side of 136th street, between Fifth and Lenox avenues," in the rear of which they keep their horses. Late in the afternoon of the 26th day of July, 1896, two horses belonging to the defendants were either turned loose or escaped from defendants’ stables, getting into this rear yard, from which one of them, a gray horse, passed out into the highway, and from thence to an open lot adjoining defendants’ coal yard on the west, where some two dozen or more children were at play, and one of these, plaintiff’s intestate, was run over and killed. The horse appears from the evidence to have been in high spirits, and was running from the time of leaving the defendants’ inclosure until the accident, a space of a few seconds. The elaborate research and great learning which have been brought to bear in support of the judgment, and the very able argument of plaintiff’s counsel, present the question whether the defendants’ servants and employés were negligent in permitting this horse to be at large and beyond their control, under the circumstances. The plaintiff’s intestate was a child in good health, 6^- years of age. He was at play with other children in an open lot, such as are common in the vicinity of this accident; and the jury might properly have found that there was an absence of contributory negligence either on the part of plaintiff’s intestate or of his parents. Indeed, to have found otherwise, under the evidence as it appeared at the time of granting the non-suit, would have been to have wholly disregarded the testimony. There was evidence in the case from which the jury might have concluded that these horses were deliberately turned loose and driven out into the street, and, while the defendants practically concede that they would have been liable if the accident had occurred in the highway under such circumstances, they urge that the rule is different because the horse entered upon private premises, which did not belong either to plaintiff’s intestate or to his parents, and there worked the wrong for which the plaintiff seeks to recover. We are of the opinion, however, that this position is not tenable. If the defendants, through the negligence of their servants, put in motion a cause which might reasonably be anticipated to result in injury to another, the question of whether that injury was consummated in the public highway, in violation of an ordinance, or upon private premises where the plaintiff’s intestate may have been a technical trespasser, is of no consequence. The rule of the common law is that it is the duty of all persons to use reasonable care and skill in dealing with any chattel, and if one is negligent in the perform

“It may be laid down as a general rule that when one does an illegal or mischievous act, which is likely to prove injurious to others, and when he does a legal act in such a careless and improper manner that injury to third persons may probably ensue, he is answerable, in some form of action, for all the consequences which may directly and naturally result from his conduct. * * * It is not necessary that he should intend to do the particular injury which follows, nor, indeed, any injury at all.” Magar v. Hammond, 54 App. Div. 532 , 536, 67 N. Y. Supp. 63 .

This was the doctrine applied in the "case of Dickson v. McCoy, 39 N. Y. 400 , where the plaintiff, a child of 10 years, was passing the stable of the defendant, upon the sidewalk of a populous street in the city of Troy, when the defendant’s horse came out of the stable, going loose and unattended, and, in passing, kicked the plaintiff in the face. The complaint alleged that the horse was of a malicious and mischievous disposition, and accustomed to attack and injure mankind, but the proof failed to sustain this allegation. The court held, however, that this was not material; that “it is not necessary that a horse should be vicious to make the owner responsible for injury done by him through the owner’s negligence. The vice of the animal is an essential fact only when, but for it, the conduct of the owner would be free from fault;” as, for instance, in the case of a horse properly fastened in the highway, which should kick or bite a passer-by. In such a case, the owner would be liable only if he had knowledge of the vicious disposition of the animal; but where a horse is allowed to run in the streets of a populous city it is obviously dangerous to the public, and the danger is none the less because the running and kicking of the horse are done in a playful mood than if prompted by a vicious disposition. Dickson v. McCoy, 39 N. Y. 402 .

■sj The duty which the defendants owed to the plaintiff’s intestate was to use reasonable care in the management and control of the horse which worked this wrong, (and while we have been afforded a very thorough discussion of wild and domestic animals, and the degree of care and responsibility imposed upon their owners^) we are of opinion that the owner of a domestic animal is bound to take notice of the general propensities of the class to which he belongs, and, if such propensities are of a nature to cause injury, he must anticipate and guard against them (Hammond v. Melton, 42 Ill. App. 187 ); and if the animal be given an opportunity to exercise the propensity, through the negligence of the owner, he will be liable to persons injured without fault on their part (Thomas, Neg. 508, citing Whart. Neg. § 907). X It cannot matter, there being no intervening cause, that this accident did not occur upon the highway. The wrong of the defendants, if there was a wrong, consisted in letting their horses loose under the circumstances by which they were surrounded, and where it was reasonable to anticipate that injury would result. The plaintiff’s intestate, in so far as the evidence discloses, had as much right upon the vacant lot as the defendants; and even if the

In' the case at bar, if' the horse had broken into the lot without any negligence on the part of the defendants, thus becoming a trespasser, for which the owners would be answerable to the owners of the premises, the case would come within" the rule adopted in O’Connell v. Jarvis, 13 App. Div. 3 , 5, 43 N. Y. Supp. 129 ; but it has no "relation to this action, which is for the negligence of the owners in permitting the horse to be at large under circumstances which made it probable that injury would result to persons.

The suggestion is made, in support of the judgment, that the law requires that the injury must proceed so directly from the wrongful act that, according to common experience and the usual course of events, it might, under the particular circumstances, have reasonably been expected (Jex v. Straus, 122 N. Y. 293 , 301, 25 N.

We are of opinion, therefore, that it was error on the part of the court at trial term to grant the motion for nonsuit, and to refuse the request of the plaintiff to go to the jury upon the issues. While we do not care to suggest that there was error in the exclusión of evidence, we are of opinion that the plaintiff, under properly framed questions, is entitled to greater latitude in showing the surroundings of the parties, as bearing upon the degree of care proper to be exercised, than was permitted upon the original trial.

The judgment appealed from should be reversed, and a new trial granted, costs to abide the event. All concur.