
    Christian Gottwald against Simeon Bernheimer (Impleaded).
    (Decided December 6th, 1875.)
    In an action to recover damages for the negligence of the defendants, resulting iir the running away of the defendants’ horse, and his colliding with and injuring: the horse of the plaintiff, no presumption of negligence on the part of the? defendant is created where all that appears is that the horse was fastened ins the street with a strap, which he broke and ran away.
    Appeal by plaintiff from a judgment of the Marine Court, of the city of New York entered on an order made by the General Term of that court, affirming a judgment entered on an order made at trial term dismissing the complaint.
    This action was brought to recover damages alleged to have been sustained by plaintiff by the negligent act of a servant of defendants in allowing a horse owned by them to run away in. a public street in the city of New York, and run against plaintiff’s horse, and wound him in such a manner as to render him comparatively useless and valueless.
    On the trial, at the close of plaintiff’s evidence, which only showed the occurring of the accident, a motion was made to. dismiss the complaint, which motion was denied. The defense then called as a witness one Henry Altenbrand, who swore that he had been in charge of the horse at the time it ran away ; that the horse did not belong to the defendants, but was the property of .the brother of the defendant Simeon Bernheimer, and had been left with him for sale, but he was not allowed to-use him in his business, and that he (witness), seeing him standing in the stable, had taken him for the purpose of exercising him, and gone with him about some business for the defendants in whose employ he was.
    At this point the court said to the plaintiff’s counsel, “ unless you have some testimony to contradict the testimony of this gentleman as to the ownership of this horse, there is no use an going further.” Both sides then rested, and the court dismissed the complaint.
    
      Spencer L. Sillier, for appellant.
    
      Jacobs dc Koch, for respondents.
   Charles P. Daly, Chief Justice.

It is not material in this ■case to inquire whether the possession of the horse by the defendants for the purpose of sale, and the use of him by the defendants’ servant upon the occasion of the accident, and upon one or two previous occasions in the business of the defendants’ firm, was sufficient or not to make the defendant answer-able for the injury; for when the judge dismissed the complaint there was not enough in the evidence to entitle the case to go to the jury upon the question of negligence ; unless we could hold that the fact that the defendants’ servant, without objection on the part of his employers, drove this horse in a wagon, when the horse had previously run away, was an act of negligence, and that the collision was a direct consequence-of that negligence, and I do not think that we can go that far. All that the plaintiff had proved by his witnesses when he rested his case, was that the horse was running away with the ■cart attached to it, when it collided with the horse and cart of the plaintiff, and produced the accident. The defendant Alfenbrand testified that he stopped at the malt house, tied the horse with a strap, and went in to attend to his business, and had got about as far as the office, when he heard loud cries of runaway,” and returning and looking around, saw that the horse was running away, the horse having broken the strap in two. This is all that there is in the evidence, and it does not show that there was any negligence on the part of the defend,-ants’ servant. He did all that he could be expected to do when he tied the horse with a strap upon going into the malt house.

Joseph F. Daly, J.

When the case was arrested by the judge before whom it was tried, the plaintiff’s case had been ■closed, and he was properly nonsuited unless he had proved negligence on the part of defendants. The judge would have? been justified in dismissing the complaint when defendants made the motion, and he had the right to do so at any stage of defendants’ case (if no further proof charging defendants had' meanwhile been given) without waiting for plaintiff to reopen, his case and supply deficiencies.

No negligence had been proved. The mere fact that horses, attached to a wagon of defendants ran away and injured plaintiff’s horse, proves no wrongful act of defendants. This has been held in this court in two cases (Quinlan v. 6th Ave. R. R. 4 Daly, 487; Furlong v. B’way & 7th Ave. R. R. not reported, a general term case).

The Horse may have run away of his own accord, in which, case the owner is not answerable (Rex v. Timmins, 7 C. & P. 499). Affirmative proof must be given that defendants neglected some precaution or care, and the running away occurred, from that circumstance (Sullivan v. Scripture, 3 Allen, 564; Dressler v. Davis, 7 Wis. 527; Albert v. Bleecker St. R. R. 2 Daly, 389 ; Griggs v. Frankenstein, 14 Minn. 81). In Albert v. Bleecker St. R.R. in this court (supra), it was held no proof of negligence to show that a horse was left untied in the public street; it was necessary to go further- and show that his-disposition or propensities made it unsafe to so leave him.

If the horse was properly fastened and took fright, broke his fastening and ran away, it was an unavoidable accident for which defendant was not Hable. But plaintiff did not show what caused him to run away, nor whether he was left unfastened. The mere fact of his running away was therefore-as consistent with no neghgence of defendants as with their negligence, and proved nothing (Cotton v. Wood, 8 Com. B. [N. S.] 566). It is only where a passenger, carried under contract is injured by the alleged negligence of the carrier, that it is sufficient to show the accident, running away of the horses,, throwing of cars off the track, and the like, to establish a prima facie ease, and throw the burden on defendant of proving that the occurrence was owing to no want of care on his. part. But between strangers the plaintiff assumes the burden of affirmatively proving negligence (Hammack v. White, 11 C. B. [N. S.] 588 ; Goodman v. Taylor, 5 C. & P. 410; Cox v. Burbridge, 13 C. B. [N. S.] 430 ; Bigelow v. Reed, 51 Maine, 325). The expression of Commissioner Earl in Unger v. 42D St. R. R. (51 N. Y. 500), to the effect, that unexplained,” the defendant’s horses being unattended and unfastened in the street, made out a prima facie case of negligence, is obiter, and no authorities are cited to sustain it. It was not necessary to the decision of the case. The well considered opinions in the English case of Cotton v. Wood (supra), unquestionably establish the true rule.

The judgment should therefore be affirmed.

Loew, J., concurred.

Judgment affirmed.  