
    John Tolmie, Appellant, v. Standard Oil Company, Respondent.
    
      .Injury from the kick of a hoi'se —proof as to the horse having previously kicked, sufficient to send the case to the jury.
    
    In an action to recover damages for an injury to a horse, harness and wagon and for personal injuries sustained by the plaintiff.in consequence of the kicking of the off horse in a team owned by the defendant while plaintiff was driving past such team, two witnesses testified that on a previous occasion they saw the same horse, driven by the same man, kick under similar circumstances, and two other witnesses testified that on different occasions the off horse in one of the defendant’s teams had kicked at them in the same manner as the horse which, kicked the plaintiff.
    
      Held, that the jury might properly find that the horse referred to by the witnesses was the one which kicked the plaintiff.
    Appeal by the plaintiff, John Tolmie, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 13th day of October, 1900, upon the dismissal of the complaint by direction of the court . after a trial at the Saratoga Trial Term.
    
      John L. Henning,,.for the appellant. .
    
      William.P. Rudd, for the respondent.
   Kellogg, J::

The plaintiff brought an action to recover for personal injuries and for injuries to plaintiff’s horse, harness and wagon, all sustained, as plaintiff alleges, through the kicking by a vicious horse owned and controlled by defendant. The proof offered by plaintiff was sufficient to entitle it to be submitted to the jury on the whole case, unless the learned trial court was right in holding as a.matter of law that there was not sufficient evidence to go to the jury on this question as to whether the horse that did the injury was the same horse which, under similar conditions in harness, on the public streets in Saratoga, had, before this time, been seen to kick at passing teams. I think the learned trial justice in so holding overlooked material testimony bearing on that question. The evidence shows that the horse that did the injury to plaintiff was the off horse in a team hauling the Standard Oil wagon, the horse weighing from 1,500 to 1,700 pounds; that plaintiff was driving by this team, going in the same direction on the public street, and in passing on the off side, some four feet away, this off horse, after throwing his head over the near horse, kicked out with both hind feet and did the injury complained of. This was, as described by.the witnesses, done in such a manner that it might be taken by the jury as some evidence of a vicious disposition, and not the result of any sudden fright.

Two witnesses, Edwin Tallman and Fred Tallman, testified that a few days before the accident they saw the same team on another street in Saratoga, and as Edwin Tallman drove by the team and was opposite the team on the off side, the off horse kicked out at him or his horse with both feet, and came near hitting his horse. Witness says: “ I then told the driver of the Standard Oil team that he had better chain the horse down if he acted like that.” The same driver was driving the team on this occasion that drove when plaintiff was injured. A witness named James D. Stiles speaks of the Standard Oil1 team; ” on one occasion before the time mentioned he drove up alongside and the off horse kicked at him with both hind feet; on another occasion under similar circumstances the same horse again kicked at him with both hind feet. Edwin Ham, another witness, testified to a similar occurrence on another occasion. These last two 'witnesses do not in terms say it was the same horse that kicked at plaintiff, but it was a grey horse on the off side in the Standard Oil team, and all the kicking having been done in the same manner and under like circumstances, I think it was proper evidence for the jury to consider and from it they might properly have found it was the same horse.

Here were four witnesses of previous vicious acts. Two of them identified the horse and two of them did not in exact terms. The learned court was in error, I think, in not leaving the case to the jury on the whole evidence.

The judgment should be reversed and a new trial granted, .with " costs to the appellant to abide event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.. - -.  