
    Frank G. West, Appellant, v. Henry G. Woodruff, Respondent.
    Third Department,
    March 7, 1906.
    Negligence—when action is based on negligent management of horse, and not on the vicious character of the animal — complaint — allegations of defendant’s knowledge of character of horse construed as charging negligence — on direction of verdict for defendant, evidence to be taken most favorably to plaintiff.
    The plaintiff, who has been injured by the running away of the defendant’s horse, which was compelled by the defendant to remain in the vicinity of trains of which it was afraid, may base his action upon the negligence of the defendant in compelling his horse to remain in such position and in negligently managing him, rather than upon the vicious nature of the animal.
    An allegation that the defendant knew his horse to be nervous, high-spirited and unaccustomed to cars may be treated, not as a ground of recovery, but as stating a circumstance tending to show the negligence of the defendant.
    
      In. an action based on the negligence of. the driver, and not upon- his maintaining a vicious animal, the issue is: Did" the defendant act as a prudent man in placihg. his horse in such positipn and keeping it there after it had become frightened by a train,' when there was ample opportunity to get' away from the exciting cause?
    When a verdict is directed for the defendant, all disputed facts are to be taken .as established in the plaintiff’s favor, and he is entitled to the most favorable inference deducible from the evidence."
    Evidence of defendant’s negligence which entitled plaintiff -to go to jury, considered.
    Appeal by the plaintiff, Frank GL West, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Livingston on the 8th day of May, 1905,. upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 3d.day of May, 1905, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial .made upon the minutes."
    
      Charles D. Newton and John G. Carpenter, for the appellant.
    
      George D. Reed, for the respondent.
   Kellogg, J.:

In. disposing of this case it is to be borne in mind that this is a directed verdict and the appellant is not only entitled to the most favorable inferences deducible from the evidence, but all the disputed facts are to be treated as established in her (his) favor.” (Koehler v. New York Steam Co., 183 N. Y. 1.)

It is not claimed that the plaintiff suffered his injury by reason of defendant’s driving a vicious horse, as was claimed in Benoit v. Troy & Lansingburgh R. R. Co. (154 N. Y. 223), but the-defendant is himself accused of personal negligence. The in jury is alleged to have arisen not from the vice of the horse, but the negligence of the driver. The defendant himself, and not the horse, is, therefore, on trial.

The complaint alleges, in substance, among other things, that defendant, knowing his horse was nervous, high-spirited and unaccustomed to the cars, .negligently drove it upon an embankment within a few feet of <a moving train* and negligently attempted, to maintain it there while the train was passing, and that after he saw the horse was restless and frightened, ,and when it was rearing" and plunging, hé negligently managed the horse, did not attempt to get it away from the danger, but attempted to make it stand within a few feet of the engine, which was passing and blowing off steam and making a great noise, and that solely by reason of the negligence of the defendant, his wagon was overturned and the horse ran away and over the plaintiff and injured him. The animal was valuable, fifteen years old, gentle, of, good life* and had never run away before. The defendant had the right to drive it and he is without criticism for so doing. It is only claimed that knowing the place and the horse, and the dangers to be apprehended, he did not act as a prudent man would act under the circumstances. The character of the horse is alleged, not as a ground for recovery, but as one circumstance among others tending to show that the defendant was negligent. If he placed a known nervous, high-spirited horse in an unusual and strange place, where it would become frightened, and upon a narrow road on an embankment, a place where there would be difficulty in handling a frightened horse, all of those facts Would be proper for consideration in determining whether he acted with due care, and if they do not indicate negligence in placing the horse there, "they may well call upon him to exercise greater care in managing the horse than would be required under other circumstances, and would naturally bear upon "the question whether when he saw it was frightened and nervous, prancing, dancing, and shying, it was prudent "to prevent it from moving on and forcing it to remain at the very spot where the exciting causes wore. The care required to be exercised in any particular case depends upon all the circumstances making for* safety or danger, and the dangers to be apprehended. There was evidence, considered most -favorably to the plaintiff, tending to show that the plaintiff was injured by the negligence of the defendant, and that his injury was not caused by an inevitable, unforeseen accident for which there is no legal liability. At least the-evidence was sufficient to require a submission to the jury of the question of the defendant’s negligence.

Considered most favorably to the plaintiff, the evidence "presents the following situation : At Avon the' Erie railroad tracks run north and south oh either side of the passenger depot, and are about four rods from each other. Jnst west of the westerly track is a bus plat-' form for the use of passengers'doming to or going frótn the station by conveyances, and there is a large open space there in ¡Railroad avenue suitable' for the placing and accommodation of teams coming to the station with or for passengers. About thirty feet north of the bus platform the milk road branches off from ¡Railroad avenue and extends along-the track westerly for a distance and goes to the milk'platform, wliich/is.ahout.one.hundred and twenty feet north of the bus platform and near the railroad track. This 'road is not .used for. general travel, hut for teams drawing milk to the station. The milk road goes along on á level, but ¡Railroad-avenue descends,:so that the milk road at the-milk platform is about four and one-half feet higher than, the street. The defendant was well acquainted with the locality, and knew the schedule time for the arrival and departure of trains. The- ¡Rochester train, the Buffalo train and- another- train were due at the station- at the same time,, and were all nearly on time. . Defendant came to the depot for 'a passenger expected to arrive on the Buffalo train, and had been there about ten minutes sitting in his buggy on the milk road at a place where it was about twelve feet wide, extending from the westerly rail of the railroad,; the nearest'wheel of- his wagon. and the horse were within about six feet of' said rail, and the milk road was here some four feet •higher than the street; and is described as and called an. embankment by some of the witnesses. Tlie horse was'facing south. At the time the defendant drove up the horse was “ acting nervous, head up.” A few minutes before- the accident the ¡Rochester train came'from the ; south; on time, upon- the; track opposite the'depot, the defendant,-and some seventy feet from him.' When-the train was some four or five rods away tlie horse séemed frightened and would-not stand, andñvas prancing-before the train pulled'inand when the train was pulling.in; she never .stopped.” The defendant made no effort to-didve.away, although there was ample opportunity and the Buffalo- train, was then due. When the Buffalo train .was approaching from the north from-behind his horse, and some two. or three hundred feet away from the horse, “ she pricked up her-ears,” the noise “ scared ” it, but defendant paid no attention; to it. -When seventy-five or one hundred feet -away the horse turned -and looked at the engine, which was -blowing off. steam. When the horse glanced around and “acted fierce,” the defendant picked up the lines and spoke to'it. It acted as if it “wanted to get out,” stuck up its ears and began to dance, and it was not but a second or so before the engine was by its side, and it made a plunge and started quickly, and turned right around. It had a full swing to run right away from the engine if it had been allowed to go out. It turned around and turned the wagon bottom up. It kept shying off from the cars "until it turned the wheel. It danced for about a minute before it tipped the defendant out, and while it danced and shied a little to the right apparently the wagon did not move. Defendant' was holding it up. The horse began to dance and sheer to the west when the train was coming back of it. “ She was getting up a little spirit and she began to put in considerable spirit when the train was about ten feet this side of the milk platform. She had turned her head at this time, and then she began to prance more; I called it shying; she wanted to get out of that, but she couldn’t start because he held her; she was prancing'and she had started to shy to the right; I should think she shied ten seconds before‘she got out of there; she did not shy very short on the start; she turned short about the time the engine passed.” After the wagon tipped over the defendant fell down the embankment, and the horse ran away and ran over the plaintiff.

There is also evidence tending to show that the defendant knew a,s follows about the horse: It sometimes shied at unexpected things; when he drove within twenty or thirty feet of trains it was often quiet but sometimes frightened and many times made trouble; it was frequently nervous at" the cars — on Railroad avenue when they were forty or fifty feet away; it was afraid of automobiles, especially if coming from behind ;■ when meeting loads of furniture or.baby carriages it was frightened and wanted to go faster, but was controlled; defendant swears it first commenced to shy at loads of washing machines about three years ago; it was frightened at traction engines, but’defendant could drive around one if the road "was good and wide; defendant had met threshing machines, but if they stopped he could go by; it never attempte'd to bolt or run, it would simply go to one side; once it got excited with him between a shed and the cars but he had no trouble in controlling it; it does not appear that she was-used to the milk road or the nearness of the trains passing there ; it does not appear that she was ever so near a moving train before, or nearer than about twenty feet ; when defendant held her within ten feet of a train she made a good deal of fuss.”

When the horse was frightened at th,e Rochester train there was ample opportunity for the defendant to get into a better place, but he compelled it to remain there, knowing that another train was coming from behind him. When it was frightened at the Buffalo, train he could easily have passed ajhead of the train to a safe place if he had permitted the horse to move along as it was disposed to do, but he chose to compel the frightened animal to remain there, and sought purposely to overcome it, perhaps to accustom it to the situation. He may have been more intent'upon holding it there, subduing and educating it, than he was for the safety of the public or of the plaintiff, whose position on the road and physical infirmities he well knew. ' .. '

Did the defendant act as a prudent man in placing this horse in that place and in keeping it there after it became frightened at the Rochester train, and also at ihe. Buffalo train; when he had ample opportunity to get away from the exciting cause ? These are questions to be answered by the inferences practical men would draw from the whole situation, and should be passed upon in the first instance by a jury. The judgment and . order are reversed and a new" trial granted, with costs to appellant to abide the event.

All concurred.

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