
    Westchester Hardwood Company, Resp’t, v. Manhattan Electric Light Company (Limited), App’lt.
    
      (New York Common Pleas, General Term,
    
    
      P'iled December 3, 1894.)
    
    Negligence—Precautions.
    Where the injury is produced by an occurrence that could not have been foreseen and guarded against, there is no negligence ; but, if it could have been foreseen and guarded against, it is the duty as much of one, as of the other, party to have taken proper precautions for this-purpose.
    
      Appeal from a judgment in favor of plaintiff, rendered by a justice without a jury.
    
      Chandler P. Anderson, for app’lt; T. Clement Campbell, for resp't.
   Giegerich, J.

The injuries upon which this action is based were received by the plaintiff’s norse while being led across the street by a fifteen year old boy employed for that purpose. The defendant’s wagon, drawn by a single horse, was coming up the street, and, when about to pass the horse which was being led, one of the front wheels dropped into a hole in the street caused by the settling of that portion of the pavement. The result was that the shafts were swung suddenly about, and one of them pierced the flank of the horse to such a depth that he was ordered to be destroyed by his owner, the plaintiff. There is considerable conflict as to the rate of speed at which the wagon was being drawn. Some of the witnesses say at a slow trot, others at a rapid trot, and still others that it was at a run. It is undisputed, however, that the horse attached to it had been driven since 7 o’clock that morning (the accident happened about 2 o’clock in the afternoon) and had just made a trip of eight miles, and was drawing a load of copper wire weighing between 1,300 to 1,800 pounds. Upon the whole, we should be disposed to conclude from the evidence that the rate was not a reckless one. Moreover it is undisputed that the wagon was in plain sight for a distance of over half a block. This would have given the boy in charge ample time to lead the horse which was injured out of the track of the approaching wagon, had any danger of a collision been apprehended. The fact seems to be, however, that all concerned expected that the wagon would safely clear the horse, and such would have been the result had not the thills been unexpectedly swerved by the hole in the pavement. If this swerving was an occurrence that could not have been foreseen, there was no negligence, and the defendant is not responsible. If, on the other hand, it could have been foreseen and guarded against, it was as much the duty of the boy who was leading the plaintiff’s horse to draw him further out of the course of the wagon as it was the duty of the defendant’s driver to take precautions on his part. The condition of the street was equally patent to both. In short, if there was negligence, there was contributory negligence (Fahr v. Man. Railway Co., 9 Misc. Rep. 57, 60; 59 St. Rep. 683), and no recovery can be had. For these reasons the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.  