
    Frederick Giblin, Resp’t, v. National Steamship Company, Limited, App'lt.
    
      (New York Superior Court, General Term,
    
    
      Filed April, 1894.)
    
    1. Cabbiebs—Animals—Negligence.
    To excuse the carrier from liability, it must not only appear that the injury arose from the viciousness, unvuliness or restiveness of the animal, but also that the carrier has been guilty of no negligence causing the loss.
    
      2. Jurisdiction—Waiver.
    The question of jurisdiction'is deemed to be waived, where the defendant duly appears and answers, but does not plead want of jurisdiction,
    Appeal from judgment, entered on verdict of a jury, and from order denying defendant’s motion for a new trial.
    
      John Ghetwood, for app’lt; Goodrich, Deady & Goodrich, (W. W Goodrich, of counsel), for resp’t,
   Gildebsleeve, J.

The assignors of the plaintiff purchased ten horses in Yorkshire, England, and entered into a contract with the defendant, a foreign corporation, engaged in the business of transporting passengers and freight between Great Britain and the United States, whereby defendant agreed to carry the horses from Liverpool, by the steamship “ Queen,” to the city of New York. In loading the horses upon the steamship at Liverpool, one of the horses fell overboard, and was drowned. This action is to recover the value of the horse thus lost, together with ten pounds, which had been paid for freight thereon by the assignors of plaintiff to the defendant. The complaint alleges that “ the defendant, or its servants, performed their duties so unskilfully and negligently, and supplied such insufficient machinery and appliances, that one of said horses fell overboard and was drowned.” The defendant, by its answer, substantially admits the contract for transportation, set forth in the complaint, and alleges that “ it has fulfilled its contract, and that it is under no such liability as is alleged in the complaint.” For further answer, defendant says that a horse, while in the charge of the servants of plaintiff’s assignors, was drowned. It is thus seen that the issues raised by the pleadings are (1) the proximate cause of the loss of the horse and the responsibility therefore, and (2) the value of the horse. The process of shipping consisted in placing the horse into a box or crate, with a door at each end, then the doors were closed, and the box, containing the horse, was hoisted and swung on board the steamship.. The horse in question, called “ Gay Lad,” was restive and uneasy, and did not readily enter the box. After four other horses had been safely placed on board, in the manner described, the horse Gay Lad, still refused to be led into the box, as the other horses were, and was therefore backed into the box, and he went through the door at the other end, off the dock, into the water, and was drowned.

It was the defendant’s contention upon the trial, and there was evidence introduced in support thereof, that the horse was in charge of the servants of the plaintiff’s assignors, when he was drowned. The issue of this question seems to have been fairly and squarely left to the jury : “If you find that the horse1 was in the possession and under control of Messrs. De Young and Atterbury (the assignors of plaintiff) at the time this accident happened, of course, there cannot be any recovery." On this question, the jury, by their verdict, found adversely to the defendant, and there is ample evidence to sustain their conclusion. While it is true that there is a conflict of testimony on this pointy we are of the opinion that there is a fair preponderance of evidence-in support of the plaintiff’s claim that the defendant assumed and undertook the task of loading the horses upon the steamship. It is the defendant’s testimony, as well as the plaintiff’s, that one Balfe, an employee of the defendant, superintended the loading of the horses, and gave specific instructions in reference to the management of the horse in question, while upon the wharf. When the-horses arrived upon the wharf, they were assigned by defendant’s servants to a shed, in which to stand until brought to the box for hoisting upon the steamer, under the superintendence of Balfe. The evidence is certainly sufficient to sustain the conclusion that, there was a delivery of the horses by plaintiff’s assignors to the defendant, and that, at the time of the accident, they were in possession and under the control of the defendant. The defendant, had received, on the day previous, payment for the transportation of the horses, at the rate of ten pounds for each horse. The fact being established that defendant received the horses for transportation to the city of New York, the common law liability of common carriers of property rested upon the defendant in respect of the horses, and it becomes insured against all loss, subject to the following qualifications :—It could be relieved from liability in case of loss, provided the loss-could be attributed to the -intrinsic-qualities or nature of the aminal, and defendant’s freedom from contributory negligence could he made to appear; and provided the loss was due to an act of God or of the public enemy. On this question, the learned trial judge laid down, for the guidance of the jury, the rule in the following language: “If this unmanageable condition of the horse was one innate in the animal, in other words, if he was such an animal as would from his disposition be unmanageable, or was from his very disposition unmanageable at the time, there cannot be a recovery here, unless this unmanageable condition was brought about by the carelessness or negligence of the defendant.” We think it may be said that this rule was more favorable to defendant than it had a right to ask, since the controlling authorities held that to excuse the carrier from liability, it must not only appear that the injury arose from the viciousness, unruliness or restiveness of the animal, or similar causes attributable to the nature and propensities of the animal itself; but it must also appear that the carrier has been guilty of no negligence causing the loss. Penn v Buffalo & Erie R. R. Co., 49 N. Y. 204; Cragin v. N. Y. C. R. R. Co., 51 N. Y. 61; Evans v. R. R. Co., 111 Mass., 142. It is not error to refuse to charge that “the proximate cause of the accident was the unmanageable condition of the horse,” inasmuch as that was a question of fact clearly within the province of the jury to determine.. After careful examination of the entire case, we conclude that there is sufficient evidence to sustain the plaintiff’s allegation of defendant’s negligence, as set forth in the complaint in the following language, to-wit, “that in leading said horses upon said steamship, the defendant or its servants, performed their duties so unskilfully and negligently, and supplied such insufficient machinery and appliances, that said horse fell overboard and was drowned.” There is sufficient testimony to support the conclusion of the jury as to the amount of damages, and we can find no reason for setting aside or modifying the verdict as being,against the evidence or excessive. The question of jurisdiction is not in the case. The defendant duly appeared and answered, but did not plead the want of jurisdiction. If that question could have been raised, it must be deemed to have been waived. Code, § 266; Popfinger v. Yutte, 102 N. Y. 38; 1 St. Rep., 334 ; McLean v. St. Paul & Chicago R. R. Co., 13 Daly, 446. The rules of law, laid down by the court below, in the conduct of the trial and in the presentation of the case to the jury, were correct. The result of the trial depended upon questions of fact, which were fairly left to the jury to decide, and its verdict is conclusive. The judgment and order appealed from must be affirmed, with costs. All concur.  