
    The Westchester Hardwood Co., Respondent, v. The Manhattan Electric Light Co., Limited, Appellant.
    (New York Common Pleas
    Additional General Term,
    December, 1894.)
    As one of defendant’s wagons was about to pass the plaintiff's horse, which was being led across the street by a boy, one of the front wheels sank into a hole in the pavement, causing the shafts to swerve towards and pierce the flank of plaintiff’s horse to such a depth that he was ordered to be destroyed. The wagon was in plain sight for over half a block, and •the defect in the pavement was patent to both the boy and driver. Meld, that if there was negligence on the part of the driver there was also contributory negligence on the part of the boy, and no recovery " could be had.
    Appeal by the defendant from a judgment of the District Court in the city of New York for the seventh judicial district, rendered by the justice thereof, without a jury, in favor of. the plaintiff.
    Action to recover damages for injuries received by plaintiff’s horse in a collision with the defendant’s wagon.
    The opinion states the facts.
    
      Ghcmdler P. Anderson, for appellant.
    
      T. Glement Ga/nvpbell, for respondent.
   Giegeeigh, J.

The injuries upon which this action is based were received by the plaintiff’s horse while being led across the street by a fifteen year-old boy employed for that purpose. The defendant’s wagon, drawn by a single horse, was coming up the street, and when about to pass the horse which was being led one of the front wheels dropped into a hole in the street caused by the settling of that portion of the j>avement. The result was that the shafts were swung suddenly about and one of them pierced the flank of the horse to such a depth that he was ordered to be destroyed by his owner, the plaintiff.

There is considerable conflict as to the rate of speed at which the wagon was being drawn. Some of the witnesses say at a slow trot, others, at a rapid trot, and still others, that it was at a run. It is undisputed, however, that the horse attached to it had been driven since seven o’clock that morning —- the accident happened about two o’clock in the afternoon ■— and had just made a trip • of eight miles, and was drawing a load of copper wire weighing between 1,300 and 1,800 pounds.

Upon the whole we should be disposed to conclude from the evidence that the rate was not a reckless one. Moreover, it is undisputed that the wagon was in plain sight for a distance of over half a block. This would have given the boy in charge ample time to lead the horse which was injured out of the track of the approaching wagon had any danger of a collision been apprehended. The fact seems to be, however, that all concerned expected that the wagon would safely clear the. horse, and such would have' been the result had not the thills been unexpectedly swerved by the hole in the pavement.

If this swerving was an occurrence that could not have been foreseen, there was no negligence and the defendant is not responsible. If, on the other hand, it could have been foreseen and guarded against, it was as much the duty of the boy who was leading the plaintiff’s horse to draw him further out of the course of the wagon as it was the duty of the defendant’s driver to take precautions on his part. The condition of the street was equally patent to both. In short, if there was negligence there was contributory negligence (Fahr v. Manh. R. Co., 9 Misc. Rep. 57, 60), and no recovery can be had.

For these reasons the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Bischoff, J., concurs.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  