
    Elizabeth McGovern, as Administratrix, etc., of James McGovern, Deceased, Respondent, v. Richard Fitzpatrick, Appellant.
    First Department,
    December 1, 1911.
    Negligence—animal — kick by vicious horse-^master and servant— assumption of risk — knowledge that horse was vicious.
    In an action to recover for the death of a servant who was killed by the kick of a vicious horse belonging to his master, the plaintiff, in order to recover, must show the vicious nature of the horse, that it had before manifested a tendency to kick and that this tendency was known or should have been known to the defendant.
    Although in. the case of an accident resulting in death less evidence is required of lack of contributory negligence or non-assumption of risk by 1 the decedent than will be required when the injured person is alive, nevertheless it will not be assumed without evidence and in the face of every presumption to the contrary that the deceased did not assume a risk. . Ordinarily, a servant who is employed to drive or handle a horse and who is aware of his vicious tendencies will be regarded as having assumed the risk if he continues to drive or handle it in the absence of a promise by the master to take such precautions as may be possible to minimize the risk. Where it appears bythe testimony of plaintiff’s witnesses that the horse was in the habit of kicking and that his propensity was so well known that the men employed in the stable avoided him and it further appears that the deceased had been employed in the stable several months and had frequently harnessed and driven the horse which later kicked him, .afinding of the jury that the deceased did not assume the risk of injury from the horse, predicated upon the improbable hypothesis that he did not know that the horse had a vicious tendency to kick, is against the weight of evidence.
    Appeal by the defendant, Richard -Fitzpatrick, from a judgment of the Supreme Court in favor of- the plaintiff, entered in the office of the clerk of the county of New York on the IIth day of February, 1911, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 7th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Allan E. Brosmith, for the appellant.
    
      Adolph Ruger, for the respondent.
   Scott, J.:

The defendant appeals from a judgment entered upon a verdict and from an order denying a new trial. The action is for damages for the death of plaintiff’s intestate, who was employed by defendant and who died, as it is alleged, from a kick received from a vicious horse belonging to defendant. The deceased had been employed by defendant for some time as hostler and driver, and a part of his duty appears to have been to harness the horse or horses which he was about to drive. On December 24, 1907, he had harnessed a horse, and was in the act of leaving the stall when he was kicked. He lived until April, but there was evidence from which the jury might have found, as it did, that death resulted from the kick. The complaint was framed as if the action was brought under the Employers’ Liability Act (Laws of 1902, chap. 600), and a notice drawn or attempted to be drawn -under that act was served on defendant and admitted in evidence. Its admission was, as we think, erroneous, because the plaintiff’s cause of action did not rest upon the Employers’ Liability Act, but was one which was known to the law before the passage of that act, being an action for the wrongful act of-an employer in furnishing to the servant a dangerous instrumentality to work with after due notice of the danger. We cannot say, however, that the error of itself would have required a reversal of the judgment. A more serious question is as to the finding of the jury, under the instructions of the court, that the deceased did not assume the risk of injury. It was necessary of course, in order to recover at all, that plaintiff should show the vicious nature of the horse, and that it had before manifested a tendency to kick, and that this tendency was known or should have been known to defendant. Although the defendant produced witnesses to the effect that the horse was not vicious, this evidence was overborne, in the estimate of the jury, by the'testimony of two former employees of defendant, who both swore that they had been kicked by the horse; that he was in the habit of kicking; that his propensity in this regard was so well known that the men employed in the stable felt obliged to avoid him.' Coupled with this evidence was the testimony of the same witnesses that the deceased had been employed in the stable for .several months, arid that he had frequently harnessed and driven the same horse. It is scarcely credible, if all this be true, that the deceased did not know of the vicious tendency to kick. This would imply either that he assumed the risk of harnessing and handling the horse, or that he was careless in dealing with it." It is true that in case of an accident resulting in death less evidence is required of lack of contributory negligence or non-assumption of risk than will be required when the injured person is alive and able to speak for himself. But this does not mean that it will be assumed without evidence, and in the face of every presumption to the contrary, that the deceased did not assume a risk. Ordinarily a servant employed to drive or handle a horse,, and who is aware of its vicious tendencies, will be regarded as having assumed the risk if he continues to drive or handle it, and if there be no promise on the part, of the master to take such precautions as may be possible to counteract or minimize the risk. The finding that the deceased did not assume the risk, which must have been predicated upon the wholly improbable hypothesis that he did not know that the horse had a vicious tendency to kick, is, in our opinion, clearly against the evidence as it was presented on the trial, and was probably superinduced by the court’s instructions upon the subject, which certainly cast upon the defendant an undue burden of proof.

The judgment and order must be reversed and a new trial granted, with costs to abide the event.

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred. • •

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