
    Annie Nilan, as Administratrix, etc., of James Nilan, Deceased, Appellant, v. Richmond County Gas Light Company, Respondent.
    
      Negligence — a gas company’s employee tlvrowing dirt out of a trench which frightens passing horses.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused as alleged by the negligence of the defendant, a gas company, it appeared that the defendant was lawfully constructing a trench in a street in which it intended to lay a service gas pipe; that the trench did not extend, entirely across the street, and that there was room enough left between it and the curb for the passage of a four-horse wagon, loaded with beer kegs, upon which the plaintiff’s intestate was riding; that the driver of this wagon had his horses under control; that the leading horses, when opposite the trench, shied at earth thrown out by laborers in the trench; that the driver pulled them over again, when the rear part of the wagon slewed against the curb towards which the ground slanted, whereupon “the kegs and everything came down,” and the deceased and the driver were thrown off.
    
      Meld, that the only possible ground of recovery must be based upon the fact that earth was thrown out of the trench while the team was passing, and that such act did not constitute negligence.
    Motion by the plaintiff, Annie Nilan, as administratrix, etc., of James Nilan, deceased, for a new trial on a case containing exceptions ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint directed by the court after a trial at the Richmond Circuit before the court and a jury. Also, an appeal by said plaintiff from an order entered in the office of the clerk of the county of Richmond on the 30th day of September, 1895, denying the plaintiff’s motion to set aside said dismissal of the complaint and for a new trial.
    
      Charles A. B. Pratt and Edward A. Hibbard, for the plaintiff and appellant.
    
      Sidney F. Rawson, for the defendant and respondent.
   Willard Bartlett, J.:

This action was brought to recover damages for the alleged negligence of the defendant corporation in so carelessly excavating a trench upon a highway in Richmond county as to cause the plaintiff’s, intestate to be thrown from a wagon in which he was riding and suffer injuries which resulted in his death. The accident occurred on Central avenue in the town of Castleton on the afternoon of December 31,1894. The defendant, through its servants and agents,, was engaged in constructing a trench across a portion of Central avenue, in which to lay a gas service pipe. This trench left space enough between it and the curb on one side of the avenue for the passage of the wagon in which the plaintiff’s intestate rode. This wagon was a beer truck drawn by four horses. It was cajiable of carrying ninety-four quarter kegs of beer, and was laden with a considerable number at the time. The driver testifies that as he approached the trench he did not see the men working in it, as he could not see how deep it was until lie came right opposite, when it seemed to be from five and a half to six feet deep. Coming down the avenue he had on the brakes as tight as they could be held and he had his horses under full control when he passed the trench. The manner in which the accident occurred is thus described by this witness: In passing the trench, my lead horses were right opposite the trench when a man in the trench threw out some earth which made my lead horses shy and they swerved over to the left side of the sidewalk and I pulled them over again and, in pulling them over, the rear part of the wagon slewed against the curb and the first thing I knew I was thrown over the horses, and the kegs and everything came down and Nilan was thrown over.” The driver further testified that the space over which he tried to drive slanted toward the •curb, having a fall of about six inches; that his horses were half way-past the excavation when they shied; that the horses were under full control and did not run at all until he was thrown off; and that after the leaders shied he still had them under control.

It is plain from this statement of the facts (which seems to me as favorable to the plaintiff as the evidence will justify), that the sole ground on which any negligence could be imputed to the defendant is suggested by the seventh request of plaintiff’s counsel, in which he asked to go to the jury on the question whether the throwing of the dirt from the excavation while the horses were passing constituted negligence. There is no evidence that the defendant was not authorized to do the work which it was engaged'in doing. The excavation did not prevent vehicles from passing to and fro, for, as matter ■of fact, there was sufficient space left for the passage of this beer truck, and it actually did pass, inasmuch as, according to the driver’s testimony, he was about ten feet beyond the excavation when he was thrown out of the wagon. He knew the situation perfectly — just where the trench was and just what space he had to drive through — and it is manifest from what he says about the condition of the brakes and his control over his horses that he could not have had them better in hand if he had been expressly informed in advance that a few shovelfuls of earth would be thrown from the ditch as he approached the excavation. This brings the case right down to the question whether negligence can be predicated of such an act as simply shoveling soil out of a trench in the course of a work properly being performed on a public highway, merely because horses may be caused thereby to shy. There is no suggestion that anything struck any of the horses, or that there Avas anything extraordinary in the way of throwing out the earth. The learned trial judge evidently thought that to pronounce the conduct of the defendant negligence, even under the most favorable view of the circumstances for the plaintiff, would be to impose too onerous a burden of care upon those engaged in work of this character. In this conclusion I think he was right. It would be practically impossible to guard against the happening of every event which might chance to frighten a timid team. It seems unreasonable to require the exercise of exceptional care simply because it sometimes happens that a very trifling occurrence will occasionally induce a sensitive horse to shy. In my opinion, the proof failed to make out any negligence on the part of the agents of the defendant leading to the injury to the plaintiffs intestate, and hence the complaint was properly dismissed.

For these reasons I think that the plaintiff’s exceptions should be . overruled and the order denying the. motion for a new trial should be affirmed.

All concurred, except Cullen, J., not sitting.

Exceptions overruled and motion for new trial denied, with costs. Judgment directed to be entered in accordance with the direction of the trial court.  