
    SHELDON v. OTSEGO & H. R. CO.
    (No. 323/118.)
    (Supreme Court, Appellate Division, Third Department.
    November 10, 1915.)
    Stbeet Railboads <§^>13.4—Opebation—Injtjby to Animals—Sufficiency of Evidence.
    Tn an action against a street railroad company for negligence resulting in injuries to horses frightened by the approach of the car, whereby they ran against it, evidence held sufficient to sustain a verdict fo-r plaintiff.
    [Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 239-250; Dec. Dig. <3^>114.]
    <@=^>For other cases see same topic & KBY-NXJMBER in all Key-Numbered*Digests & Indexes
    Appeal from Otsego County Court.
    Action by Hiram VV". Sheldon against the Otsego & Herkimer Railroad Company. Judgment for plaintiff was affirmed by the County " Court (89 Mise. Rep. 482, 152 N. Y. Supp. 702), and defendant appeals. Affirmed.
    Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.
    Owen C. Becker, of Oneonta, for appellant.
    Clarence E. Piolines, of Oneonta, for respondent.
   SMITH, P. J.

I have given this case careful attention, because of the earnest insistence of appellant’s attorney that the facts proven do not justify the judgment recovered. I am unable, however, to agree with this contention. The plaintiff’s servant was riding one horse and leading two others along the streets of Oneonta. The defendant’s car came upon the street back of the place where these horses were being led, and when it came to these horses one of the horses jumped around against the side of the car, and thereby became injured. It is the claim of the plaintiff, which the judgment of the City Court has established, that the car was negligently run, and that more care should have been taken in approaching these horses, and therefore that the plaintiff is entitled to recover for the damage caused by the defendant’s negligence. It makes little difference whether the horse was hit by the forward end of the car, or whether the horse jumped into the car. The defendant’s duty was to exercise care in running its cars upon a public street, that accidents might not be caused. From the plaintiff’s proof it is possible to find that, when this car was over 1,000 feet from these horses, the horses appeared frightened, and were “bobbing” around and jumping upon the track, and that the defendant’s motorman ought to have seen them and brought his car down to' a very slow pace, if not to have stopped it for the moment entirely. It may also be found from the evidence that the motorman, disregarding his duty, either did not slow up at all, or at least did not slow up sufficiently, and that by reason thereof the horses became frightened when the car was opposite them, and in their fright this damage was caused. It is true that the testimony of the plaintiff’s servant is the only testimony in behalf of the plaintiff. This servant is not now in the employ of the plaintiff. Nevertheless he is clearly interested in the action. So, also, are the defendant’s witnesses, the motorman and conductor of this, car. They swear that the car was brought to a slow pace, and that there was no evidence of any fright on the part of the horses. It seems clear, in reviewing the evidence, that a question of fact was presented, and that there was sufficient evidence upon which the City Court could base this judgment. Of course, we cannot see the witnesses. They were before the City Court. He could judge of their credibility. We would not be justified, nor would the County Court in the case at bar have been justified, in setting aside this verdict as against the weight of evidence.

I recommend, therefore, that the judgment be affirmed, with costs. All concur.  