Crozier v. Read — 60 N.Y. St. Rep. 215

Majority

p. 215

Sophia Crozier, App’lt, v. George R. Read, Resp’t.

(Supreme Court, General Term, Second Department,

Filed May 14, 1894.)

Headnote

1. Hegmgencb—Precaution.

A party is chargeable with negligence for omitting to take a precaution, which a reasonable man would have taken, to prevent injury.

8. Same—Question of fact.

The question as to whether defendant’s servant was negligent was held, under the facts and eircumstances of this case, to be a proper one for the jury.

Appeal from a judgment entered on a verdict directed by the court in favor of the defendant.

Frederick W. Sherman, for app’lt; Maurice Dillon (Martin J. Keogh, of counsel), for resp’t.

This is an appeal from a judgment in favor of the defendant, entered upon a verdict rendered by direction of the court at the close of the trial, notwithstanding plaintiff’s request to go to the jury. The action was brought by the plaintiff to recover damages for severe and permanent injuries caused by her being thrown from her wagon by a collision with one of the defendant’s horses. She testified that, as she was driving with her infant daughter in Port Chester, she saw a pair of defendant’s horses, in charge of a boy (plaintiff’s servant, McCarty), corning towards her. The boy was riding one bareback and leading the other by a halter. The horses were, from the time plaintiff first saw them in the distance, prancing and plunging about, so that she was frightened. She turned far out to the right,—so far that there was more than enough room for a two-horse team and large wagon to pass, and still leave rqpm on either side thereof. The boy, instead of turning out of the traveled road, or of stopping or attempting to stop the horses, took them sufficiently near to cause the accident, and then, when just abreast of her, jerked or pulled upon the halter of the led horse, causing the latter to swerve across the road, and back into plaintiff’s wagon, thereby arresting its progress with such suddenness as to throw her and her child out of the wagon. She fell upon the stone roadway, and injured her back, arm, shoulder, and legs. A con

p. 216

flict arises between the testimony of the four witnesses—two on each side—as to whether or not the defendant’s horses were misbehaving before the collision to such an extent as to have made it negligent to take them near the plaintiff's wagon.We think, under the testimony as it stood at the close of the trial, it presented a proper question to be submitted to a jury. The testimony on the part of the plaintiff might well justify the inference that the collision could have been -avoided by the exercise of proper care on the part of defendant’s servant. If, as claimed by the plaintiff, the horses, just previous to the accident, had become in a degree unmanageable, and were cavorting from one side of the street to the other, a jury might well infer it was' the duty of the servant to either turn the horses out of the poad, or dismount and hold them by the heads until the plaintiff had safely passed. A party can be charged with negligence for omitting to take a precaution which a, reasonable man would have taken to prevent injury, as for a positive negligent act which results in damage. Again, a jur/'might have found it was negligent, under the circumstances, to jerk the horses’ heads justas the-horses were about to pass the plaintiff. ' A sudden and violent jerk has a tendency, as everybody knows, to make a horse settle back; and, his head being turned from the wagon,_instead of towards it, the tendency would naturally be for him to back against the wagon. The jury might have thought that the boy negligently and unskillfully managed the horses at the instant of or just before the collision. If the horses’ heads had been towards the wagon, there would have been no collision, but the horses would have backed away, which is a conclusion that follows from the well-known disposition and habits of a horse not to run against any obstacle. At all events, it presents a case where twelve honest men might differ in their inferences as to the negligence of the defendant, and, if they found in favor of the plaintiff, it could not be said the verdict had no support in the evidence. It therefore appeared that the plaintiff was without fault.

Judgment reversed and new trial granted, costs to abide the-event