
    Frederick J. Karcher, Respondent, v. Fiss, Doerr & Carroll Horse Company, Appellant.
    Second Department,
    June 5, 1908.
    Negligence — injury from, kick of horse — auction.
    Although it is not negligence for an auctioneer of horses to stir up the animals with a whip while exhibiting, them back and forth between two lines of bidders, it is for the jury to say whether it was negligent to strike a horse with a whip at the moment it was being turned about so that its heels were ■ close to the spectators.
    Appeal by the defendant, the Fiss, Doerr & Carroll Horse Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of Hovember, 1907, Upon the verdict of a jury for $1,200, and also from an order entéred in said-clerk’s office on the 6th day of Hovember, 1907, denying the defendant’s motion for a new trial made upon the minntés.
    The action is for negligence. The defendant is a dealer in horses, and has auction' sales of horses in its horse market. The auction takes place in a very large room. The persons who attend the sale form in two parallel lines aross the mom, about 8 or 10 feet apart, but as far or as near apart as they like, so long as room enough be left between to exhibit the horses. The auctioneer’s stand is in the centre of one of the lines. The horses are led in - one after the other, and back and forth on a trot in the lane between such lines. As one employe leads the horse back and forth another attends^ whip, in hand, and occasionally hits the horse a cut of the whip to stir him up and make him show action. This is the customary way in horse marts, as the plaintiff testified, anti the striking with the whip is necessary in order that the purchasers may see the action of ' the horse in order to bid. The plaintiff understood all this and was "familiar with it. He was standing in-line opposite the auctioneer’s stand. A horse was trotted up the lane to the stand, and as he was being turned there to be trotted back, the employe hit him with the whip, and he kicked out behind- with both feet and kicked the plaintiff. Fifteen or twenty other horses had been exhibited in the same way while the plaintiff stood there and before he was hurt. He testifies that the horse was hit “ a very hard blow ”, “ a very severe blow ”; that “ the only difference in the exhibition of this horse and the fifteen or twenty horses is that I claim that they hit this, horse a little harder blow with the whip. * * * He hit the horse very hard”. His. witness testified that “it was a hard crack of the whip”..
    
      Frank Verner Johnson [Knowlton Durham with him on the brief], for the appellant.
    
      Adolph Ruger, for the respondent.
   Gaynor, J. :

To hit the horses with a whip to stir them up was not negligence. But thelearned trial Judge sent the caseto the jury to find whether it was negligence to hit the horse with the horsewhip while he was turning; because if he kicked out in that position he would kick toward the line. How whether it was negligence depends on whether in due care and foresight it was to be anticipated that a horse might kick out behind when given a severe cut of a horsewhip. A horse that will do it is an exception, and the rule of due care does not ordinarily require us to regulate our conduct on exceptions. But that is not always so if the exception is likely to occur, as proved by experience, and should therefore be anticipated. All sorts of new horses were constantly coming to the defendant’s mart for sale, and-out of so many, ever changing, it was to be expected that there would be a vicious or kicking horse every now and then. Cutting the horse with the whip while lie was crosswise in the lane,' with his heels so close to the bidders, could be found to be negligence in fact.

The judgment should be affirmed.

Present — Jenks, Hooker, Gaynor, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  