
    Isaac C. Davis, Appellant, v. Carl F. Kallfelz, Respondent.
    (County Court, Onondaga County,
    February, 1898.)
    1. negligence — Collision in á street—Contributory negligence by leaving a buggy unattended in the street, contrary to an ordinance.
    Where it appears, upon the trial of an action, to recover damages for injuries alleged to have been caused by the running away of the defendant’s team, left unattended in a city street, and its collision with the buggy of the plaintiff, that, contrary to a municipal ordinance forbidding, under a penalty, “any detached vehicle to remain in any public street,” the buggy of the plaintiff had, before the collision, stood in such a street for more than four hours, a justice of the. Municipal Court of the city of Syracuse may properly find as a fact- that the plaintiff has been guilty of such contributory negligence as precludes his recovery.
    3. Same — A horse left unattended in a street — Bes ipsa loquitur.
    The fact, that a horse, left unattended by the defendant in a public street, ran. away, calls for. .explanation, and, when unexplained, would have called for a reversal of the judgment in his favor, had the plaintiff been free from contributory negligence.
    Appeal from a judgment of the Municipal Court of' the city of Syracuse in favor of defendant.
    Action-to recover damages caused by defendant’s negligence. Answer, denial and contributory negligence.
    Goodelle & Nottingham, for appellant.
    Hopkins & Bondy, for respondent.
   Ross, J.

Appeal from a judgment of the Municipal Court of the city of Syracuse in favor of the defendant for $9.70 costs. The return of the justice contains this entry: “ Plaintiff left his wagon in the street from six o’clock until ten o’clock a. m., in violation of the city’s charter, which was a wrongful act and prevents him from recovering ” and signed by the judge of the Municipal Court below who tried the case. ■

The evidence, in brief, shows that during the temporary absence of the defendant’s driver a team belonging to the defendant ran away and collided with a buggy belonging to the plaintiff, which at the time was standing between the curb and the sidewalk upon a public street in the city of Syracuse. This action is brought to recover" damages for such injuries. The plaintiff claims that the facts developed upon the trial, i. ev the fact that the team was left unattended, that it ran away, and that the driver when placed upon the stand by the defendant was not questioned as to his management of the team at the time (Milliman v. R. R. Co., 3 App. Div. 110), makes it a prima facie case of negligence, calling upon the defendant to make some explanation of his conduct. The defendant called no witnesses who gave any explanation as to how the accident occurred or showed that it was from fright, or from causes for which the defendant was blameless or against which he had taken proper precaution.

Contrary to my impression upon the argument, I am convinced that this contention is correct and that the fact that a horse is left unattended in the public street and in fact runs away, is evidence of negligence which requires a decision in accordance with such a conclusion if not explained. Pearl v. Macaulay, 6 App. Div. 70; Doherty v. Sweetser, 82 Hun, 556; Morris v. Kohler, 41 N. Y. 42, 46, and cases; Unger v. F. S. S. R. Co., 51 id. 498.

In so far as the judgment is a determination of the defendant’s negligence, this is not a decision of a justice of the peace upon conflicting evidence or upon evidence from which different inferences can be drawn and, therefore, final upon appeal. Hommel v. Meserole, 18 App. Div. 106. Therefore, the judgment must be reversed unless there is evidence to sustain the finding of the justice that the plaintiff was guilty of contributory negligence.

Section 6, chapter 40 of the ordinances of the city of Syracuse (offered in evidence by the defendant), provides the punishment for leaving a detached vehicle in a public street: Who shall permit any detached vehicle to remain in any public street ” shall be, etc. Mo time is specified as being necessary to bring a person within the terms of this ordinance; At the time of the happening of the accident and for four or five hours prior thereto the vehicle in question stood within the confines of a public street in the city of Syracuse, but not in the roadway, being situated between the curb and the sidewalk.

It is earnestly contended by the plaintiff that this fact does not, as a matter of law, constitute the proximate cause of the plaintiff’s injury and that it should be held as a matter of law that it is no defense to this action. The defendant contends with equal earnestness that the state of facts developed upon thé trial in relation thereto, showing an unlawful act and creating as is claimed by the defendant, a nuisance, prevents, as a matter of law, a recovery by the plaintiff; and this was the view apparently taken in the mental operation of the justice in deciding the case; but the mental operation of the justice in deciding the ease has nothing to do with the record. It is not made by statute a part of the record and could not be offered in evidence upon a question whether a decision rendered embraced issues-presented-within a subsequent decision. Agan v. Hey, 30 Hun, 591.

The commission of an unlawful or a prohibited act by the plaintiff, in an action of negligence does not necessarily .prevent a recovery. Davies v. Mann, 10 M. & W. 546, the case of a donkey fettered in a highway; Platz v. City of Cohoes, 89 N. Y. 219. In ■ tins case the plaintiff was injured while traveling in violation of the statute relative to the observance of Sunday. Also Carroll v. S. I. R. R. Co., 58 N. Y. 126; Connolly v. Knickerbocker Ice Co., 114 id. 104. In the case last cited the plaintiff, an infant, was injured by a collision between a street car on which he was riding and a wagon belonging to the defendant. The plaintiff was at the time riding upon the platform of a street car. It was held:

■ (a) That while such act (i. 6., riding on the platform) might be a defense in -an action against the railroad company, it could not be' asserted by a third party.

(b) The plaintiff was riding upon the platform in violation of a statute. “ While the violation of such statute - may be proved as a fact for consideration by the jury, such violation does not for all purposes necessarily establish negligence * *' * the gettmg upon the car was not the immediate cánse of -the plaintiff’s injury, and assuming that' the plaintiff violated the statute, he was not for that reason denied the right to assert the defendant’s negligence as the cause of the injury and charge the defendant with liability as the consequence.” Knupfle v. Knickerbocker Ice, Co., 84 N. Y. 488, in .which it was held that the proof of the violation of a city ordinance does not establish negligence per se, but is some evidence for the consideration of the jury.

The question of contributory negligence may be disposed of by the court when no facts are in dispute or no weighing of testimony is necessary. Sherry v. N. Y. C. & H. R. R. R. Co., 104 N. Y. 652. In Thurber v. H. B. M. & F. R. R. Co., 60 N. Y. 331, it is held in the opinion of Mr. Judge Allen: “ When the inferences to be drawn from the proof are not cértain and incontrpvertible it cannot be decided as a question of law by directing a verdict or nonsuit, but must be submitted to the jury.” . Atwater v. Town of Veteran, 6 N. Y. Supp. 907.

That the, violation of a statute or ordinance is evidence for the consideration of a jury upon the question of negligence, see Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488, and McRickard v. Flint, 114 id. 222. In the last case it is held that the omission of uhe owner of a building in the city of Flew York to comply with certain statutory requirements in regard to. protecting the openings in the different floors is prima facie evidence of negligence. Blanchard v. N. J. S. Co., 59 N. Y. 292, and Hoffman v. Union F. Co., 68 id. 385, hold that the failure of an injured vessel to comply with statutory regulations is not per se a bar to a recovery, but is one 'of the circumstances to be considered in ascertaining the proximate cause of the injury.

The attorney for the appellant cites in his supplemental brief a number of cases: Platz v. City of Cohoes, 89 N. Y. 219; Davies v. Mann, 10 M. & W. 546; Williams v. Syracuse Iron Works, 31 Hun, 392; McKeon v. Steinway R. R. Co., 20 App. Div. 601; Halley v. Earle, 30 N. Y. 208, and Austin v. N. J. Stmbt. Co., 43 N. Y. 75. He claims that these cases hold that the violation of a statute or ordinance or other unlawful act alleged in these respective cases does not, as- a matter of law, constitute contributory negligence.

The cases of Davies v. Mann and McKeon v. Steinway R. R. Co. have to do with the interesting question, constantly growing in importance, of the distinction relative to an antecedent negligence which might not be concurrent in such a sense as to .relieve the defendant from liability; (and in both of these cases the act alleged as contributory negligence was not the violation of any statute or rule or ordinance;) and decide that when the plaintiff has placed himself in a dangerous position, the defendant, advised of his situation, is not, for that reason, legally justified in injuring him. -

In Austin v. Steamboat Co., Church, Ch. J., said “ The referee before whom this action was tried, found as a conclusion of fact that the injury complained of was caused by the negligence of the defendant, and that the plaintiff was free from any negligence which contributed to the injury, and this court is concluded by these findings.”

In Haley v. Earle, Ingraham, J., said: “ The only question in this case is whether the judge erred in submitting to the jury the question whether the want of a helmsman on board of the barge contributed to the accident, and if not, that that fact did not prevent the plaintiff’s recovery.”

In Williams v. Syracuse Iron Works, it was held to be error not to submit to the jury as a question of fact whether, under the circumstances of that case, the plaintiff’s intestate was guilty of contributory negligence. In other words, it is held (in the cases referred to that the question of the contributory negligence of the plaintiff is a question of fact and they do not hold that the acts of the plaintiff did not constitute contributory negligence.

In this case it is claimed that the plaintiff had violated ‘an ordinance of the city of Syracuse. This is a circumstance for- a jury to consider under the cases above cited. The location of the detached vehicle with reference to the roadway, the length of time it had remained in that situation and all the circumstances connected therewith, present facts from which different men might draw different inferences. Therefore, the justice’s decision of these issues in favor of the defendant will not be disturbed upon appeal. The verdict of a jury settles in favor of the prevailing party every question of fact litigated upon the trial. Wolf v. G. F. I. Co., 43 Barb. 400.

In Burnham v. Butler, 31 N. Y. 480, Mr. Justice Potter states the rule laid down by Bronson, J., in Stryker v. Bergin, 15 Wend. 491, to be: “ That where on a trial in a Justice’s Court-there is evidence on . both sides, and even where there is only slight evidence in support of the cause of action on which there is a recovery, the County Court is not authorized to reverse the judgment, although such court may arrive' at a conclusion upon the facts of ■ the case, or the weight of evidence, different from that drawn by the justice.” This is equally applicable in a case where different inferences can be drawn from a conceded state of facts.

If it is desired by the.attorneys or by the court below to present á decision as a question of law it should be done by granting or refusing an application to nonsuit.

For the reasons heretofore stated the judgment is affirmed, with costs. ‘ ‘ -

Judgment affirmed, with' costs.  