
    Julia Benoit, an Infant, by her Guardian ad litem, etc., App’lt, v. Troy and Lansingburgh Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 8, 1894.)
    
    Negligence—Runaway houses.
    In an action for injuries inflicted by a runaway team of defendant, if the horses, before the accident, had run away only on one occasion to the knowledge or notice of defendant’s.superintendent, a submission to the jury of the question as to the vicious or dangerous character of the horses is proper. • . .
    
      Motion for a new trial on exceptions ordered to be heard at general term in the first instance.
    
      James F. Crawford'(Galen R. Hitt, of counsel), for pl’ff; R. A. Parmenter, for deft.
   Per Curiam.

Plaintiff, an infant seven years of age, was injured by a span of horses belonging to defendant, while they were running away on Ontario street, in the city of Cohoes. The complaint alleges that said span were addicted to running away, to defendant's knowledge, and also that the sled or vehicle before which they were driven at the time of the accident, was defective, not' affording sufficient means to control said horses, and hence the injury to plaintiff resulted from negligence on the part of the defendant. The trial judge nonsuited the plaintiff.

The only matter for our consideration is whether, on the evidence given, the question of the defendant’s negligence should have been submitted to the jury. It is not denied that the owner of dangerous or vicious animals, with notice, is liable for damages done by them. Van Leuven v. Lyke, 1 N. Y. 515; Dickson v. McCoy, 39 N. Y. 400-403. Had this case been submitted to the jury, they could have found from the testimony that the team which injured the plaintiff had run away twice before the injury. If, however, it had been made to appear that the horses, before the accident, had run away only on one occasion, of which fact it was shown that the superintendent of the defendant had notice, we think a submission to the jury of the question as to the vicious or dangerous character of the horses would have been proper. Helmke v. Stetter, 52 St. Rep. 528; 23 N. Y. Supp. 392; Kittredge v. Elliott, 16 N. H. 77 ; Arnold v. Norton, 25 Conn. 92. The jury, if allowed to pass on the questions of fact raised by. the pleadings, therefore, would have been justified in finding that, a week before the injury to plaintiff, the same horses which caused the injury, in passing some school children “ snowballing ” in the street,—became frightened and unmanageable, so that the driver was unable to control them; that, with knowledge of this fact, defendant, on the occasion of the injury to plaintiff, allowed the same team, driven before the same sled by the same driver, to go over the same route, and h)' the same school, where the team was frightened as before, and again became uncontrollable and ran away, causing the injury to plaintiff for which this action was brought. We think that the evidence was such that the case should have gone to the jury. The jury could have properly found that a team that became frightened and uncontrollable at a very ordinary occurrence in a public street were dangerous and vicious, and that defendant, having notice of the character of the horses, was negligent in again sending said horses, with the same driver and sled, and on the same route where they were before frightened. We also think it was a question proper for the consideration of the jury whether the sled used by defendant as a vehicle before which to drive the team to the barn was a safe one for the purpose.

There should be a new trial, with costs to abide the event.

All concur.  