
    Hiram W. Sheldon, Respondent, v. Otsego and Herkimer Railroad Company, Appellant.
    (County Court, Otsego County,
    March, 1915.)
    Negligence — contributory — action to recover for loss because of alleged negligent operation of street car — questions for jury — damages.
    Where a motorman seeing that a horse is frightened by his ear and becoming unmanageable does not lessen speed he is guilty of negligence.
    Where while one of plaintiff’s employees was riding one horse and leading two, one of defendant’s electric street railway freight ears collided with and ran into one of the horses which was being led, injuring it and rendering it practically useless, and in an action, tried before the court without a jury, to recover for the loss because of defendant’s alleged careless and negligent operation of the car, not only the precise manner in which the accident happened but the care with which the car was handled and its speed are in conflict, a judgment in favor of plaintiff will be affirmed, as the question of the negligence of defendant and the contributory negligence of plaintiff was for the trial judge.
    Appeal from a judgment of the City Court of Oneonta rendered in favor of plaintiff.
    Owen C. Becker, for appellant.
    Gibbs, Holmes, Waterman and Holmes (C. E. Holmes, of counsel), for respondent.
   Kellogg, J.

'The plaintiff herein has recovered judgment in the City Court of Oneonta for $146.15 damages and costs by reason of the alleged negligence of the defendant.

It is contended by the plaintiff that on the 7th day of October, 1913, one of his employees was riding one horse and leading two other horses along Chestnut street in the city of Oneonta and at the same time a car of the defendant, propelled by electricity, was being operated along and over said street, and when at a point a short distance westerly of West street, the defendant so carelessly and negligently managed and operated said car that in consequence thereof it collided with and ran into one of plaintiff’s said horses, whereby it was severely injured and rendered practically worthless.

The defendant admits that plaintiff’s horse collided with one of its cars, but denies that it was the result of any negligence on its part, and avers that it was entirely due to the carelessness of plaintiff’s servant who was in charge of the horses.

The trial was before the learned city judge without a jury who found in favor of the plaintiff, and rendered judgment pursuant thereto.

It appears from the record that at the time and place in question, one Robert Maxim, an employee of the plaintiff, of the age of seventeen years, was riding one of plaintiff’s horses and leading two others, and had arrived at about the watering trough on Chestnut street when one of defendant’s electric freight cars came around the angle in Chestnut street near West street, and was then distant from the horses about eleven hundred feet.

This witness testified: “Just below the watering trough the car come around the curve, and I put my hand up to stop it; the horse was afraid; commenced to jump and it turned me around; one horse whirled right around on the track, right hand side; saw this car coming around the bend and the horse commenced to rear; threw up my hand; the motorman was looking right at me and saw the horse was afraid; seen the car get closer to me; the horse wheeled around on the track; the car hit the horse and pulled me off my horse, and I got the other horse around before he could be hit; the car went by maybe twenty or thirty rods before it could be stopped; the car did not slow down and was going fast; when the car was sixty or fifty feet from me I stopped the horses and started to pull them off the track; when the car was right upon them, one of them, the horse nearest the track, swung its butt right along the track, and the car step or journal hit the horse. The front end just got by as he jumped.”

The witness Delos Yager, an employee of plaintiff, who-was driving a horse hitched to- a sulky just in the rear of the horses led by Maxim testified: Q. You can’t tell what part of the car hit the horse from where you were? A. The front end of the car. Q. The side of the front end or the fore part? A. The fore part of the car.”

The motorman Mudge testified that when he first saw these horses the boy was riding one horse and leading two, and he was on the right hand side of the road, and the horse nearest the track was quite near the track, and “ I rang the gong and he pulled his horse over near the curb, so I had room to pass; I slowed up the car and was coasting by; there was no power on, and as I got the front end of the car near the horse he looked this way, and threw his body around on the side of the car apparently. As I approached the horses I reduced the speed, and when I reached them was going five or six miles an hour; the track was wet and slippery.”

Defendant’s conductor Beach testified: We were coasting until we apparently got even with them when the horse next to the track swung around to the car; this was next to the track; must have been about four feet away before it started to swing around; when I first saw the horses they were on the right hand side of the track, probably two feet from the track, and as near the track as he got until he swung around. ’ ’

The primary question for consideration here is: under all the circumstances was the negligence of the defendant and the contributory negligence of the plaintiff a question of fact for the decision of the city judge? Or should he have granted a nonsuit at the close of the evidence? The appellant has urged that it is not in dispute that the injury was resultant from' the horse backing or throwing itself around against the car after the forward end of the car had passed it, and that this being so, it was not possible for the motorman to anticipate that one of the horses would suddenly whirl itself around against the side of the car whilst it was passing, and that therefore the only question for decision here is one of law upon an agreed state of facts which must be decided in defendant’s favor upon the ground that plaintiff has failed to show that it was in any manner guilty of negligence.

The evidence of plaintiff’s witness Yager, it must be confessed, is a trifle obscure, but he has, however, testified that the front end of the car hit the horse, not the side of the front end, but the fore part of the car.

Therefore, not only the precise manner in which the accident happened, but the care with which the car was handled and its speed is in conflict. Maxim’s testimony that the horses were on the track when the car was sixty feet away, and that the conductor did not slow down from the time he waved his hand until the car was twenty or thirty rods past him, and that it was going fast, is flatly contradicted by defendant’s motorman and conductor, each of whom has testified that the speed of the car was slackened, that there was no power on, was coasting, and went a short distance before it stopped.

It was the duty of the motorman in charge of defendant’s car, upon observing that the horses, were frightened, to exercise reasonable care, that is to act as a reasonably prudent man would under the same circumstances, and, therefore, if his car was advancing at a high rate of speed, to slacken the speed, or, if being run at only a moderate rate, to have it under such control that he could readily stop it if the latter ■ act appeared to be necessary from the subsequent acts of the horse. This duty was not only incumbent upon him to have avoided injury to the horses, or any one of them, in case they became unmanageable, but he had more of a duty to perform than to wait until the horses were beyond control,1 for then any action on his part would avail little. He was required to act at that point of time in the occurrences when a reasonably prudent man might infer that the horses would become unmanageable and would act. Lines v. Winnipeg Elec. St. R. Co., 11 Manitoba, 77; Terre Haute Elec. R. Co., v. Vant, 21 Ind. App. 486; Citizens St. R. Co. v. Lowe, 12 id. 47; 5 Am. Elec. Co. 436. Cited with approval Danville R. & Elec. Co. v. Hodnett, 101 Va. 361; 13 Am. Neg. Rep. 620.

A motorman who, seeing that a horse is frightened by the car and becoming unmanageable, does not slacken his speed or lessen the speed of the car, is guilty of negligence. Lines v. Winnipeg Elec. St. R. Co., 11 Manitoba, 77.

Negligence has also been predicated where there was a failure to lessen the speed or stop the car when it might have been seen with reasonable diligence that horses were frightened. Geipel v. Steinway R. Co., 14 App. Div. 551; Richter v. Cicero & P. St. R. R. Co., 70 Ill. App. 196; Danville R. & E. Co. v. Hodnett, 101 Va. 361; 13 Am. Neg. Rep. 621; Gibbons v. WilkesBarre & S. St. Co., 155 Penn. St. 279; 4 Am. Elec. Cas. 546; Swain v. Fourteenth St. R. Co., 93 Cal. 179.

The motorman or driver of a street car, if otherwise exercising due care, is not ordinarily required to stop his car immediately upon seeing an animal or vehicle on the street or highway near the track, but if he gives a proper warning of the approach of his car he has a right to a limited extent, at least until the contrary appears, to act on the assumption that the animal or vehicle will, if on the track, be turned out in time to avoid a collision, or, if on the part of the street or highway not occupied by the tracks, will remain there until the car has passed, as that it will not attempt to cross the track in front of the car, and if the animal or vehicle is turned onto the track so suddenly that it is impossible by the exercise of reasonable care to stop the car in time to prevent an accident, the company is not liable for resulting injuries, but the right to rely upon such assumption, however, does not relieve the motorman from the duty of taking precautions, which, under the circumstances, reasonable and ordinary care requires of him to take to prevent a collision, and if he sees, or by the exercise of ordinary care could see, that a collision is likely to occur, it is his duty to use reasonable means within his power to check or stop his car in time to prevent it. 36 Cyc. 1510, 1511, and cases cited.

It was likewise incumbent upon the plaintiff to handle the horses in a reasonably prudent manner. that is, as has sometimes been said, with the care of the average man under like conditions and circumstances, as well as to put them in charge of a person of reasonable prudence and skill.'

The rule as to when a case must be submitted on the facts, and is not one of law for the court, is clearly defined by Werner, J., in Smith v. N. Y. C. & H. R. R. Co., 177 N. Y. 224, wherein he says: “ When intelligent and reasonable men may fairly differ in their answers as to the questions in the case, it is for the arbitration of the jury, and not for the court.” ■

Where there is a fair chance for a difference in opinion among intelligent men and the facts must go to the jury, and whenever men of ordinary prudence or discretion might differ as to the character of an act under the circumstances of the case, the question whether it was negligence is one of fact. Holbrook v. Utica R. Co., 12 N. Y. 236; Keller v. N. Y. C. R. R. Co., 2 Abb. Ct. App Dec 483; Hays v. Miller, 70 N. Y. 112.

I am of the opinion therefore that the question as to whether the motorman under the conditions and circumstances as set forth in the record exercised reasonable care and acted as a reasonably prudent man would have done, as well as the manner in which Maxim handled the horses at the time and place in question, was one of fact for the decision of the city judge.

It is likewise urged that this judgment should be reversed as against the weight of evidence. The mere fact that the young man Maxim, and the conductor and motorman of the defendant are in direct conflict as to their testimony, does not call for reversal of the judgment on this ground, neither has this court any power to so do. The learned city judge presided at the trial, . saw each of the witnesses and heard their testimony, and he evidently accepted the plaintiff’s version of the affair, and this court has no right to interfere with such decision.

The judgment appealed from is, therefore, affirmed, with costs.

Judgment affirmed, with costs.  