
    William O’Connell, Respondent, v. James J. Mooney, Appellant.
    (City Court of New York, General Term,
    October, 1900.)
    Tort — Scienter as to vicious horse.
    An employee cannot recover for personal injuries caused by the kick of a horse belonging to his employer unless he shows by direct evidence that the horse was vicious and-that the employer knew it.
    Appeal from a judgment for the plaintiff after a trial by a jury and from an order denying a motion for a new trial.
    Action by an employee to recover damages of his employer for personal injuries received from being kicked, as alleged, by a “ green ” horse, negligently placed in the stable where the employee worked, and known to be vicious.
    John E. Duffy (Leopold Leo, of counsel), for appellant.
    Otto Kempner, for respondent.
   Conlan, J.

The action is for injury to the plaintiff, caused by a kick from the defendant’s horse. The complaint contains an allegation that the horse in question was vicious and that the defendant had knowledge thereof. The counsel.for the defendant moved to dismiss the complaint upon the authority of Lawlor v. French, 2 App. Div. 140; but we do not think the cases are parallel. In that case the court said, it is apparent from the evidence that the horse was not vicious. What might be considered as a sufficient reason for taking this case from the jury is the fact that there was no positive testimony that this particular horse was vicious, or that, if he were vicious, the defendant knew of it. To entitle the plaintiff to recover, the vicious character of the horse must not only be proven by direct evidence, but it must be shown that the defendant had such?' knowledge as to render him negligently guilty. Upon this precise question there was, in our opinion, an absence of sufficient proof to charge the defendant with knowledge; it does not appear that the horse ever kicked any one before, or since; indeed, no one had experienced any difficulty with him other than the plaintiff, so far as the testimony discloses. It is, perhaps, unfortunate that the plaintiff should be a sufferer without redress, but juries are not to measure suffering with sympathy, and award damages which, it may be said, are given simply to solace the afflicted, unless there be grounds for a recovery.

Entertaining these views, we think that the motion for a non-suit should have been granted; and, because of the error in sending the case to the jury without some evidence upon which they might reasonably deliberate, the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Fitzsimons, Ch. J., concurs.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  