
    Thomas Allis et al., Appellants, v John Turner, Respondent.
    [688 NYS2d 864]
   Judgment reversed on the law without costs and new trial granted. Memorandum: Plaintiffs commenced this action to recover damages for injuries sustained by Thomas Allis (plaintiff) while attempting to restrain defendant’s horse, which had escaped from a fenced pasture and was unattended on the road. Plaintiffs appeal from a judgment dismissing the complaint based upon a special verdict finding that defendant was not negligent. Supreme Court’s denial of plaintiffs’ request for a res ipsa loquitur instruction was reversible error. “[Hjorses do not generally wander unattended on public streets in the absence of negligence” (Loeffler v Rogers, 136 AD2d 824; see, Johnson v Waugh, 244 AD2d 594, 596, lv denied 91 NY2d 810; Osborne v Schoenborn, 216 AD2d 810, 811; see also, Young v Wyman, 159 AD2d 792, 793, affd 76 NY2d 1009). Plaintiffs established that defendant was in exclusive control of the horse and the pasture and that plaintiff played no role in the horse’s escape (see, Kambat v St. Francis Hosp., 89 NY2d 489, 494). The instruction would have permitted the jury, after rejecting evidence of specific negligence, to infer negligence from the presence of the unrestrained horse on the road (see, Abbott v Page Airways, 23 NY2d 502, 513).

All concur, Hurlbutt, J., not participating. (Appeal from Judgment of Supreme Court, Oswego County, Elliott, J.— Negligence.) Present — Pine, J. P., Wisner, Hurlbutt, Scudder and Callahan, JJ.  