
    William G. Gulliver, Respondent, v. Charles E. Blauvelt, Appellant.
    
      Negligente—fastening a cow upon a highway by a chain which she pulls taut and so trips a horse —presumption that the cow was plated upon the highway by its owner — credibility of interested witnesses.
    
    An injury to a riding horse, occasioned by his stumbling over a chain, by which a cow on one side of the highway was fastened to a stake on the other, drawn taut by the cow and thus raised from the ground, gives a good cause of action to the owner of the horse against the owner of 'the cow, by whom the cow was thus secured.
    While, in the absence of any statutory inhibition, the presence of an unattended domestic animal on a highway may not be unlawful, yet its owner has no right to so secure it as to obstruct the highway.
    In an action to recover for such injury, the cow being the property of the defendant, it may be presumed that she was placed upon the highway.for his benefit and on his account, and consequently, notwithstanding the denial of two interested witnesses, that' the defendant was not responsible for the fact that the cow was thus- fastened at the side of the highway, the question whether this was so or not is one to be decided by the jury.
    Appeal by the defendant, Charles E. Blauvelt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Hew York on the 2d day of May, 1896, upon the verdict of a jury, and also from' an order entered in said clerk’s office on the 4th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    This appeal was transferred from the first department to the second department.
    
      
      J. H. K. Blauveltj for the appellant.
    
      Charles W. Pierson, for the respondent.
   Cullen, J.:

This action is brought to recover damages for injuries to a saddle horse, the property of the plaintiff. The occurrence took place in the State of Hew Jersey. The plaintiff’s claim was that he was riding along the highway; that the defendant’s cow was tethered on the side of the highway by a chain fastened to. an iron stake ; that the cow was standing on the other side of the traveled road from that where the stake was driven in the ground; that as he reached a point on the road opposite the cow, the cow drew the chain taut, thus raising it from the ground; that the horse stumbled over the raised chain and received the injuries for which the plaintiff brings suit. The plaintiff, further claims that until the time of the accident he could not see the chain, nor was he aware of its presence in the road. The answer of the defendant is substantially a general denial.

Before the trial terminated defendant’s ownership of the cow was practically admitted. The question of the plaintiff’s freedom from contributory negligence and the negligence of the defendant in permitting the cow to be tethered in this manner on the side of the road was submitted to the jury, which found a verdict in favor of the plaintiff, and from a judgment entered on that verdict this appeal is taken.

The defendant moved to dismiss the complaint, upon the ground that there was no proof of any statute in the State of Hew Jersey which made it illegal to suffer domestic animals to go unattended on the highways. There was no proof of any statute on the subject, and it may be conceded that, as contended for by the defendant, in the absence of any statutory inhibition, the presence of domestic animals on the highway unattended was not unlawful. (Bowyer v. Burlew, 3 T. & C. 362; Holden v. Shattuck, 34 Vt. 336.) But the injury in this case was not occasioned by the animal itself, but from the manner in which it was tethered. Though the defendant had the right to suffer- the animal to be on the highway,, he had no right to secure it in such a manner that the cow could obstruct the highway. In Holden v. Shattuck (supra), the leading authority hi support of the right to place cattle on the highway, it is said: “There may be times and occasions when■ it would be a culpable fault so to do, and would subject the owner to such damage as might result therefrom. For instance, to permit animals to occupy the highway by night with the likelihood of their lying down for their rest in the travel path, and by thus obstructing it, causing accident and damage.” Within this rule the question of , negligence, as to the manner in which the animal was secured on the highway, was for the jury.

It was also contended that the defendant was not responsible for the cow being thus fastened on the side of the road. The defendant denied that he fastened it, and his employee made a similar denial. We think the evidence of these two witnesses was not conclusive as to the fact. Both were interested witnesses, and, hence, their credibility was a question for the j ary. (Elwood v. W. U. Tel. Co., 45 N. Y. 549; Honegger v. Wettstein, 94 id. 252; Munoz v. Wilson, 111 id. 295.) It was not shown where the cow was kept, nor how it happened that she was found in the highway. The fact that she was tethered there to an iron stake would seem to exclude the probability of her presence occurring through accident, or because she had strayed away. The cow being the property of the defendant, it is to be presumed that she was placed on the highway in use for his benefit and on his account. (Norris v. Kohler, 41 N. Y. 42 ; Seaman r. Koehler, 122 id. 646.) Despite, therefore, the denial by the defendant and his servant, this presumption raised a question of fact to be determined by the jury.

The charge of the trial court was correct. It instructed the jury that the burden of proof was upon the plaintiff on both propositions— his own freedom from negligence and the fault of the defendant. Its charge, as to the presumption that the cow was tethered by defendant’s direction, was in. strict accord with the rule-in Norris v. Kohler (supra). The defendant’s request to charge that, in the absence of. proof of the statute of New Jersey relating to highways, it must be presumed that the common law prevails, and by the common law it was not negligence to tether cattle by the side of the public highway, so far as the request was correct, was sufficiently covered by the previous charge. The court had already charged: “ If she (the cow) had been altogether loose— that is, not tied to anything — there would be no liability.” But there is no authority for the claim that.it is lawful to so secure an animal in the - public highway that it will naturally and probably obstruct the highway.

The judgment and order appealed from should'be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  