Kaniuk v. Dry Dock, East Broadway & Battery Railroad

Majority

p. 129

KANIUK v. DRY DOCK, E. B. & B. R. CO.

(Supreme Court, Appellate Term.

November 29, 1905.)

Headnote

Damages—Injuries to Horses—Hieing of Other Animal.

In an action for injuries to a horse, it is error to allow damages for the hire of a horse to replace the injured animal, in the absence of evidence of what plaintiff paid for such hire, or that he paid anything.

Appeal from Municipal Court, Borough of Manhattan, Fifth District. '

Action by William Kaniuk against the Dry Dock, East Broadway & Battery Railroad Company. From a judgment for plaintiff, defendant appeals.

Reversed.

Argued" before SCOTT, P. J., and GILDERSLEEVE and Mac-LEAN, JJ.

William E. Weaver, for appellant.

Leopold Freiman, for respondent.

Unless we are prepared to hold that the mere fact that an accident happened fastens liability upon the defendant, this judgment cannot stand. There is absolutely no evidence of negligence. It was also manifest error to allow anything for the hire of a horse to replace the injured animal. There is no evidence of what plaintiff paid, or that he paid anything. All we have is his brother’s testimony that he “usually” charged $2 a day.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.