
    Thornton Ellis, Appellant v. New York City Railway Company and Park & Tilford, Respondents.
    Second Department,
    June 29, 1908.'
    ¡Negligence—injury to passenger on car by runaway horse.
    Action to recover for personal injuries received by the plaintiff while a passenger on the surface car of the defendant railroad caused by a collision with a runaway horse owned by the codefendant. The car was being operated with due care and, although the motorman was signaled tó stop the car, there was nothing to show that this would have prevented the runaway horse from plunging into the car. On all the evidence, held, that a judgment entered on a verdict exonerating the defendant railroad should be affirmed.
    • .As to the defendant owner of the horse, the evidence tended to show that the horse had been driven but a few times and that it became frightened at an ordinary apparatus used by the street cleaning department, broke his harness and ran toward the car in which the plaintiff was a passenger. There was proof tending to raise a question as to the efficiency of the driver and as to whether the harness and trappings of the horse were sufficient. On all the evidence, held, that it was error to dismiss the complaint as to the owner of the horse and that the court on setting aside a verdict should have granted á new trial.
    Gaynob and Milleb, JJ., dissented in part.
    Appeal by the plaintiff, Thornton Ellis, from a judgment of the Supreme Court in favor of the defendant New York City Railway Company, entered in the office of the clerk of the county of Kings on the 26th day of April, 1907,.upon the verdict of a jury;.also from a judgment in favor of the defendant Park & Tilford, entered in said clerk’s office on the 3d day of May, 1907, upon the decision of the court setting aside a verdict in favor of the plaintiff, and also from an order entered in said clerk’s office on the 12th day of April, 1907, denying the plaintiff’s motion for a new trial made upon, the minutes.
    
      Thomas C. Whitlock [George F. Parsons with him on the brief], for the appellant.
    
      Bayard H. Ames [ Walter Henry Wood and James L. Quackenbush with him on the brief], for the respondent New York City Railway Company.
    
      Frederick Hulse, for the respondent Park & Tilford.
   Woodward, J.:

The plaintiff, while a passenger on one of the cars of the defendant Hew York City Railway Company, was seriously injured by a runaway horse attached to a truck and owned by the defendant Park & Tilford. Upon the trial, and at the close of the evidence, both defendants moved for a nonsuit, the court reserving decision and sending the case to the jury. The jury returned a verdict, exonerating the defendant railway, and' imposing the damages to the extent of $1,000 upon the defendant Park & Tilford. The latter thereupon moved to set aside the verdict, under the provisions of section 999 of the Code of Civil Procedure, and also for a decision upon the pending motion for a nonsuit. The plaintiff moved to set aside the verdict in favor of the defendant railway, which motion was denied. On the defendant Park & Tilford’s motion to set aside the verdict and to dismiss the complaint, the court granted both motions, and the plaintiff appeals from the order entered herein on or about the 12th day of April, 1907, denying his motion for a new trial made upon the minutes, and from the judgment entered herein on or about the 26th day of April, 1907, in favor of the defendant Hew York City Railway Company and against the plaintiff, for the sum of $111.00, and the judgment entered herein on or about the 3rd day of May, 1907, in favor of the defendant Park & Tilford and against the plaintiff, for the sum of $114.33, and. from each and every part of said order and judgments.”

We are of the opinion that the plaintiff, having had an opportunity to go to the jury on the question of the liability of the defendant Hew York City Railway Company, was not entitled to a new trial as against that company. There was very little, if any, evidence to show that the defendant had been careless in the matter. Its car was being operated with due care, and the accident happened because the horse and wagon owned by the defendant Park & Tilford ran away and plunged into the car. While there was some evidence that the motorman of the car was signaled to stop his car, there is nothing to show that this would have prevented the accident ; at least, nothing to show that the motorman had reason to believe that it was safer to stop his car than to attempt to run it forward out of the pathway of the horse. A runaway horse is a very uncertain thing to attempt to dodge, with a street car, in the ordinary observations of mankind, and we are of the opinion that the jury were fully justified in holding that the defendant railway company was not guilty of neglecting any duty that it owed to the plaintiff.

It seems to us, however, that the learned court erred ' in dismissing the complaint as to the defendant Park & Tilford. Whatever may he said as to the weight of the evidence, and as to the propriety of setting aside the verdict of the jury,’we are not prepared to say that there was not some evidence in tliis case which had a.tendency to show that Park & Tilford, through its driver or otherwise, was guilty of negligence toward this plaintiff.. The evidence has a tendency to show that the horse which ran away was a green horse; that he had only been owned by Park & Tilford a week or ten days; that he had been driven a few times by the superintendent of their stables, and by the' driver who was in charge at the time of the accident, and that he became frightened at an ordinary wide-bladed shovel used by the street cleaning department on the asphalt pave-. ments; that he backed up, broke the hook or staple' which held the hold-back straps, and that when the wagon ran onto his heels he started and ran in the direction of the car in which the plaintiff was a passenger. The defendant’s driver does not appear to have had a very comprehensive mind, and the manner in which he testifies he acted under the circumstances is sufficient to bring into question his efficiency. Of course, a mere error in judgment in a situation of the kind is not negligence, but whether the driver was a man of sufficient judgment and intelligence to be intrusted with a green horse, whether the harness and trappings were such as were required by considerations of safety and the exercise of reasonable care, and all the circumstances connected with the accident, are proper matters to be. considered. One witness testified that he thought that one of the reins was out of the driver’s hands and was flying in the air; another testified that the driver had the reins but that they were loose over the horse’s back. While the weight of the evidence would seem to be in favor of the theory that the driver was using-his best judgment and strength in dealing with a trying situation, it cannot be said as a matter of fact that there was no legal evidence tending to establish negligence on the part of the defendant Park & Tilford. This being the case it was error, to dismiss the complaint. On the setting aside of the verdict, which rested within the discretion of the trial court, a new trial should have been granted, and the motion to dismiss the complaint should have'been denied.

The judgment and order appealed from, in so far as it relates to the defendant railway company, should be affirmed, and as it relates to the defendant Park & Tilford the judgment and order should be reversed and a new trial granted, costs to abide the event.

Hookeb and Bich, JJ., concurred; Gaynob and Milleb, JJ., voted to affirm the judgment and order as to both defendants.

Judgment and order, in so far as it relates to the defendant the Hew York City Bail way Company, affirmed, with costs, and in so far as it relates to the defendant Park & Tilford, judgment and order reversed and a new trial granted, costs to abide the event.  