
    The Potter & Parlin Co., Respondent, v. The New York Central & Hudson River Railroad Co., Appellant.
    (City Court of New York, General Term,
    December, 1897.)
    Negligence — Horse, not tied, killed by a locomotive — Failure of éngineer to stop.
    Proof, made in an action brought to recover the value of a horse and wagon destroyed by a locomotivej tending to show that, although the horse was standing, untied, in the street, it was gentle and that its driver was near at the time - of the accident, and that the locomotive, although moving so. slowly that its engineer could have stopped it in a distance of thirty feet, did not, in fact, stop it at all, is sufficient to justify the conclusion that the engineer was negligent, and that the driver of the horse was not guilty of contributory negligence.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict, and from an order denying a motion for a new trial.
    Frank Loomis, for appellant.
    Hutchinson & Newhouse, for respondent.
   Conlan, J.

This is an appeal from a judgment, entered on the verdict of a. jury, and from an order denying a motion for a new trial.

The action was brought to recover $187.95 damages for injury to plaintiff’s property, alleged to have been negligently caused by a locomotive of the defendant, at Eleventh avenue, near Fifty-sixth street, New York city, March 20, 1895.

The complaint sets forth in two sepárate causes of action that on March 20, 1895,- while a' horse and Wagon was standing in charge of the plaintiff’s driver on Eleventh avenue, near Fifty-sixth street, in the city of New York, such horse and Wagon was run into by an engine of the defendant, the horse was killed and the goods and wagon were lost,

"The answer admits the accident; denies that it occurred through any negligence of the defendant, its agents and servants, and sets up that it occurred by reason of the negligence of the driver in charge of the horse and wagón at the time of the accident.

The contention of the appellant that it was negligence to leave a horse untied in a city street, is fully met and overcome by the authority of Wasmer v. Delaware, Lackawanna & Western R. R. Co., 80 N. Y. 212, where the court, Mr. Justice Earl, said:

“As to the negligence of the intestate. He was lawfully in the-street, engaged in a lawful business. There is no absolute rule of law that requires one who has a horse in a street, to tie him or-to hold him by the reins. It would doubtless be careless to leave a horse in a street wholly unattended without tying him to something. But it is common for persons doing business in streets-with horses, to leave them standing in their immediate.presence-while they attend to the business, and it is not unlawful for them to do' so. It is commonly safe so to do, and accidents are rarely-occasioned thereby.”

And, as in the case at bar, there was no proof that the horse,, as in the case cited, was vicious, unsafe or unmanageable. On the contrary, the evidence was to the effect that the horse was gentle and easy to manage. The evidence is that the driver was near his horse and might expect in an emergency to control him; and the court further said, whether he acted prudently under-such circumstances, in leaving his horse there, was a matter to be determined by the jury upon the evidence; and this ruling would seem to dispose of the appellant’s exception to the refusal' of the trial court to charge upon this precise question as requested..

Having thus disposed of the question as to whether the accident was caused by the contributory negligence of the plaintiff,, we proceed to the other alternative — the question of the defendant’s negligence.

The evidence upon this point was conflicting, plaintiff contending that the engineer of defendant was warned in time to have avoided the accident, while the evidence of the defendant is that no such evidence was given.

It was said in the case of Chrystal v. T. & B. R. R. Co., 105 N. Y. 164, that an engineer is not bound to stop his train the moment he sees some living object on the track. He has the right in broad daylight when his train is perfectly visible and its approach must be heard and known, to assume that the object — whatever it is — will leave the track in time to escape injury.

The defendant’s witnesses asserted that the roadway was obstructed by other teams at the time of, or just prior to, the accident, and its engineer admitted that his train was proceeding at the rate of about four miles per hour, and could have been stopped within the distancé of the engine’s length, or about thirty feet; and it was incumbent upon him to use every precaution that would assist him in avoiding the accident,

t The fact that he proceeded with his train before coming to a stop before the occurrence of the accident, when, by stopping, the injury would have been prevented, he may be said to have risked the consequences, and that his act in so doing resulted in the injury. If this were so, then the defendant is clearly liable.''

The question of the negligence of the defendant was fairly submitted to the jury upon all the evidence, and we are- not inclined to disturb their finding. The amount of the damages is not in dispute upon this- appeal, and, upon the whole case, we think the judgment should be affirmed.

O’Dwyer, J., concurs.

Judgment affirmed, with costs.  