
    William S. Howley, Respondent, v. Albert Kraemer, Appellant.
    (Supreme Court, Appellate Term,
    October, 1901.)
    negligence — Horse unattended running away — Rebuttal of presumption of negligence.
    A presumption of negligence arises against the owner of a horse where it, yoked to a wagon and left unattended in a public street, runs away in a manner unexplained.
    This presumption is not necessarily rebutted by testimony of the driver that, before leaving the horse unattended, he tied the wheels of the wagon with a rope in such a manner that they could not move and, by other testimony, that boys untied the rope and started the horse running, as the court is not bound to believe the driver’s testimony as to tieing the wheels, he being an interested witness, and if he tied them insecurely the master would be liable.
    Appeal by the defendant from a judgment in favor of the plaintiff rendered by the Municipal Court of the city of New York, second district, borough of The Bronx.
    Jones Cochrane, for appellant.
    Ferguson & Sinnott, for respondent.
   McAdam, J.

On November 24, 1900, the defendant’s horse, yoked to a wagon and unattended by any person, ran away in a Avesterly direction on One Hundred and Thirty-ninth street and collided with the plaintiff’s wagon at St. Ann’s avenue, inflicting the injuries for which he obtained judgment. The accident unexplained raised the presumption of negligence (Norris v. Kohler, 41 N. Y. 42, 46; Unger v. Forty-Second Street R. R. Co., 51 id. 497; McCahill v. Kipp, 2 E. D. Smith, 413; Doherty v. Sweetser, 82 Hun, 556; Wasmuth v. Butler, 86 id. 1; Pearl v. Macaulay, 6 App. Div. 70); and the facts disclosed do not show that as matter of law the plaintiff was guilty of contributory negligence.

To rebut the presumption of negligence the defendant’s son, Frank Kraemer, driver of the defendant’s wagon, testified that he drove the horse and wagon on the day in question to a house on One Hundred and Thirty-ninth street, 150 feet east of St. Ann’s avenue, so as to take away lumber from the cellar of the house; that he backed the wagon to the sidewalk and turned the horse’s head to the west, so that the axle of the front wheels was at right angles to the axle of the rear wheels; that with two “ half hitches ” he tied the right front wheel to the left rear wheel by means of a rope one inch thick and five to six feet long, which rope he produced'in court; that he had always so tied his wagon, and that tí at was the method used by most drivers who drive vans and express wagons; and that when so tied the more a wagon is moved the tighter .the rope gets. As to whether when the wheels are so tied it is easy to untie them the witness’s testimony is contradictory; at one time he said it was a very hard thing to untie the rope, and at another time he said the rope was easily untied. While the driver was down in the cellar the horse ran away. Defendant’s witness, Heuendorff, testified that shortly before the accident he saw the defendant’s horse and wagon on One Hundred and Thirty-ninth street; that he saw a boy about twelve years old pull the rope out "of the wheels of the wagon, that another boy took the reins, pulled the horse and threw the reins on the horse’s back, whereupon the horse ran away to St. Ann’s avenue, where the collision took place. This witness after the accident had business dealings with the defendant. The witness Keuendorff did not see the rope tied, nor did he see it being untied. ‘ He merely saw it pulled out of the wheels; and as before stated the evidence of the defendant’s driver, the one who testified that he tied the rope, and the only witness who saw the rope tied, was contradictory. The driver was an interested witness, and the justice was not bound to believe his testimony that the wheels of the defendant’s wagon were properly tied. If the wagon was insecurely, or carelessly tied, the defendant would be liable. Thompson v. Plath, 44 App. Div. 291; Pearl v. Macaulay, 6 id. 70. The questions were presented to the justice as questions of fact; for although the defendant made the usual motions for dismissal at the end of the plaintiffs case, he made no motion after both sides rested (see Hopkins v. Clark, 158 N. Y. 299; Kafka v. Levenschn, 18 Misc. Rep. 202; Sullivan v. Brooks, 10 id. 368); and we see no reason to disturb the justice’s finding that the defendant failed to rebut the presumption of negligence.

As to the amount of damages. The plaintiff was awarded the full amount demanded in his complaint. This sum, as appears by his bill of particulars, was made up of seventy-eight dollars and sixty cents for repairs to his wagon; twenty-six dollars and twenty-five cents for carriage hire while the wagon was undergoing repairs; thirty dollars damages to coat and trousers; five dollars and fifteen cents for medical treatment; and three hundred and sixty dollars for personal injuries. The estimated damage to the wagon and the value of the repairs as testified to by Mr. Klein, the witness who did the repairing, coupled wfith the payment to him of the amount, of the estimate, seventy-eight dollars and sixty cents, fully prove the item in question, which was therefore properly allowed. Volkmar v. Third Ave. R. R. Co., 28 Misc. Rep. 141. The item for carriage hire, twenty-six dollars and twenty-five cents, was also properly allowed, for it was proved that there was no unreasonable delay in repairing the wagon. Albert v. Bleecker Street R. R. Co., 2 Daly, 394. There was no evidence showing the payment of five dollars and fifteen cents for medical expenses. Neither was it proved that the damage to the plaintiff’s clothing was thirty dollars. As to the injuries to the plaintiff’s person, he himself testified: I was bruised about the back, the hip and the leg and the back of me, from the back of my head rather — the small of my back, my hip, my thigh and my leg.” And his physician testified that plaintiff “ had a contusion of' the left thigh just above the knee, a contusion and abrasion of the left arm, just above the elbow, a contusion of the left hip, a contusion and abrasion of the scalp just back of the left ear, a contusion of the left buttock — the fleshy part of the thigh — that is all.” There was no other evidence as to the extent of personal injuries, and none as to pain, suffering, confinement, or loss of business. Although the award of $360 was ample,it cannot be said to be excessive. In tort actions for personal injuries the amount of damages is left to the discretion of the jury, and the court will not ordinarily interfere unless the amount is so unreasonable and excessive 'as to be indicative of passion, prejudice, partiality, or corruption. 14 Ency. Pl. & Pr. 756; Walsh v. Fitchburg R. R. Co., 78 Hun, 1; Minick v. City of Troy, 19 id. 253. We are, therefore, not disposed to reduce the sum allowed for the personal injuries.

Judgment reversed, and new trial ordered, with costs to the appellant to abide event, unless the respondent stipulates to reduce the recovery to $464.85, with the costs awarded below, in the event of which stipulation the judgment will be affirmed, without costs.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide event, unless respondent stipulates to reduce recovery to $464.85, with costs awarded below, in event of which stipulation judgment affirmed, without costs.  