
    Henry Wagner, Respondent, v. The New York Condensed Milk Co., Appellant.
    Term,(Supreme Court, Appellate
    July, 1897.)
    Negligence — Leaving horse untied - Contributory negligence.
    The owner of a bicycle may recover damages of the1 owner of a horse and wagon for his negligent act in leaving the horse unhitched and unattended in a public street and nearly in front of the premises of the owner of the bicycle, with the result that the horse started forward of his own accord and injured the bicycle; nor is the owner of the latter guilty of contributory negligence as matter of law,''because when he left his bicycle in the' street in front of his own premises, he failed to notice whether or not the horse was attended- by a driver, there being a presumption that the |>wner of the ho-rse and wagon will exercise reasonable care in using them.
    Appeal by the defendant from a judgment for the plaintiff rendered in the District Court in the city of Hew York for the thirteenth judicial district, in an action! tried by the justice without a jury.
    Action to recover damages arising from the partial destruction of the plaintiff’s bicycle by the defendant’s horse which was attached to a wagon and left unhitched and unattended in the street. ,
    Thomas M. Rowlette, for appellant.
    J. Baldwin Hands, for respondent.
   Bischoff, J.

The defendant’s horse, left unhitched and unattended in the street, when attached to a wagon which had been halted nearly in front of the plaintiff’s premises, started forward of its own accord and caused an injury to the plaintiffs bicycle which he had placed, standing against the curb and in the roadway, a few feet distant from the horse.

Witnesses called for the plaintiff testified to the fact that the animal had been unguarded by its driver, the defendant’s servant, for some time prior to the accident in question, and, therefore, the defendant’s negligence was proven sufficiently to support the recovery in this aspect. Wasmuth v. Butler, 86 Hun, 1; Dickson v. McCoy, 39 N. Y. 400.

It is claimed for the appellant, however, that the plaintiff’s act in placing his bicycle in front of this unguarded horse was negligence upon his part, obviously contributing to the injury, and that for this the complaint should have been dismissed.

Had the plaintiff observed the driver’s absence from the wagon, when leaving his bicycle as he did, his right of recovery might be open to discussion, but his testimony was to the effect that at this time he did not observe whether the driver was or was' not present, and only when he removed the machine from the street, after the damage was done, did he notice-that the horse was unattended.

At most it was a question of fact whether he should have ascertained, in the first instance, that the horse was under its driver’s control; certainly it cannot be said, as matter of law, that such was his duty, for, indeed, he could have assumed, that the defendant so operated its wagon that its duty to exercise ordinary care, toward persons also using the highway, was properly observed. That this stationary vehicle would become a thing of danger through the defendant’s negligence, was not for him to- anticipate.

The absence of contributory negligence, therefore, was readily to be .found from the evidence and the sole ground, upon which this appeal is based becomes untenable,

Judgment affirmed, with costs. -

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  