
    Ann M. Dill et al., Adm’rs, Pl’ffs, v. Charles W. Voshall, Def't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    Negligence—Failure of proof.
    A person was attempting at night to drive to his mother’s house through a covered way, which was closed by gates. The defendant, by permission of the owner of the locus in quo, had put bags of cement in this way. It was claimed that these white objects frightened the horse. It appeared, however, that the horse reared and plunged into the passageway before reaching said bags. It was also alleged that the bags of cement prevented the gates from opening to their full width. On the other hand, a witness of the accident, from recollection, placed the gates about as they were at the time of the accident, and it was found that the gates, although not opening to their full width, did not interfere with the ordinary width of the wagon track. Held, that a nonsuit was proper.
    Motion by the plaintiffs for a new trial on a case and exceptions, ordered to be heard at the general term in the first instance, after a nonsuit at the Monroe circuit, in October, 1890.
    
      George D. Reed, for pl’ffs; Thomas Raines, for def’t.
   Macomber, J.—This

This action is brought to recover for injuries resulting in the death of Prank Dill, the son of the plaintiff, Ann M. Dill, on the 3d day of May, 1889.

The deceased was attempting to drive from North Clinton street through a covered way into the premises of his mother. In order to reach his mother’s house it was necessary to drive through a space ten feet nine inches in width from wall to wall, and covered for a distance of twenty-eight feet. This driveway was shut off by two gates, one of which was seven feet two and one-half inches in width, hanging upon hinges fastened to a post on the south wall of the driveway; and the other hanging upon hinges fastened to a post upon the north wall of the driveway, the latter being about three feet in width. When closed, both gates came together at a low foot post standing three feet four inches from the north wall of the driveway. To this foot post the large gate was fastened by a hook, which held it in place, and the "smaller gate was fastened to the larger one by means of a latch. Both gates swung into the driveway; the largest one toward the south wall, and the smaller one to the north wall. A board walk existed along the north wall two feet three inches in width. The driveway, so far as it was covered, was in the night time a dark passageway. The south wheel track was shown to be a little over three feet from the south wall, and the north wheel track to. be three feet four inches from the north wall.

The deceased, who had driven in and out of this place during the day, when first seen by the witness appeared in front of the entrance at 10:40 P. M., with his horse’s fore feet upon the sidewalk, desiring to enter through the passageway to his mother’s house. The only eye witness of the occurrence, who was passing along the sidewalk at this time, was asked by the deceased to open the gate in order that he might pass in, and was instructed by the driver how to proceed to open it. This witness finally took hold of the large gate at its further end and was required, inasmuch as it sagged to the ground, to lift it along, but at a time, so far as the evidence discloses the fact to be, before he had carried the gate as far as it would go, the horse, which was at this time very restive, reared and plunged into the passageway, so that the witness was obliged to scramble to get out of its way. In some manner or other, not clearly disclosed by the evidence, the driver was thrown from the buggy (the wheels having passed upon the sidewalk upon the north side of the passage way), and received a blow upon his head, from what source it is impossible to tell, resulting in his immediate death.

It is claimed in behalf of the plaintiffs, that the defendant is responsible for the death of Frank Dill. The charge against him is, that he placed bags of cement within the passageway, standing them on end along the south wall, so that on opening the gates the large gate could not be placed back parallel with the wall, but at a distance four or five pickets from the hinges the same came in contact with the bags, thus preventing a clear opening. These bags of cement, which the defendant, being a builder, was using in the construction of a building adjacent to Ann 'M. Dill’s premises, had originally been placed along the south wall of the passageway by the consent of the owner of the premises. There is no evidence that the defendant had been requested to remove the bags, but had neglected to do so. The plaintiff’s contention is, that these bags, being white objects appearing in a dark passageway, frightened the horse. But the testimony of the witness to the occurrence, taken as a whole, completely negatives such contention. The witness had made no motions to open the small gate, but it is perhaps a sufficient answer to that to say, there was evidence to the effect that the small gate when released from the larger one would, by gravity, swing back toi the north wall. The witness says that he swung the large gate around until it came to a jar and that he could not push it any further; and at that instant the horse gave a leap, plunging toward the north wall,-and as the horse plunged into the driveway the witness fell back, hearing the crash at the same instant.

This witness subsequently visited the place of the accident and placed the gate in the spot as his recollection showed it to be at the time of the accident, swinging it back to a point as far as he had swung it on the night in question, and he says, as a result of those subsequent observations, the further or swinging end of the gate was, at the time of the occurrence, twelve and one-half inches south of the south edge of the south wheel track.

The evidence, taken all together, shows that the claim made against the defendant is placed upon a hypothesis which finds no support in the evidence. Had the jury rendered any verdict under these facts other than that the deceased came to his death by reason of the unruly plunging of the horse, it would not have been supported by the preponderance of the evidence.

It follows, therefore, that the nonsuit was properly granted, and the motion for a new trial should be denied.

Motion for a new trial denied, with costs, and judgment ordered for the defendant upon the nonsuit.

Dwight, P. J., and Lewis, J., concur.  