Lonergan v. Martin — 53 N.Y. St. Rep. 320

Majority

p. 320

James Lonergan, App’lt, v. George W. Martin et al., Resp’ts.

(City Court of New York, General Term,

Filed June 19, 1893.)

Headnote

Negligence—Injury to horses by reckless driving.

Plaintiff, who was driving behind defendant’s team, turned out to pass them, when defendant, without warning, suddenly turned his horses against plaintiff’s, forcing them against ah engine, and ran over the hoof of one of the horses, so injuring it that it died. Held, that this entitled plaintiff to a submission of the questions of negligence to the jury, and that a dismissal was error.

Appeal from judgment dismissing the complaint.

Christopher Fine, for app’lt; J. Stewart Ross, for resp’ts.

The plaintiff’s testimony shows that while driving along Hudson street between Duane and Eeade streets, just in the rear of the defendants’ 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.

Van Wyck, J., concurs.