
    Anthony McGarry, Resp’t, v. The New York & Harlem Railroad Co., App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed March 14, 1892.)
    
    1. Master and servant—Vicious animals—Notice to master.
    It is the duty of a master who employs a servant to attend to horses to use a reasonable degree of observation to ascertain the character of the horses, and to prevent any horse that is dangerous from being kept in a stall for the work of a man upon it. Knowledge of the superintendent of the stables or of a head hostler of the viciousness of a horse is knowledge, of the master.
    S. Same—Charge.
    In an action for injuries received by an hostler from a vicious horse, it. is proper for the court to refuse to charge that if the horse from the time of its purchase had been fed and cared for in the manner in which plaintiff was required to do so, without, to the defendant’s knowledge,- attacking or injuring any person, defendant was justified in believing that it was safe for plaintiff to feed and take care of him and that plaintiff could not recover.
    3. Same—Instructions to servant.
    If a servant is ordered to tend a horse that is dangerous and vicious, it is the duty of the master to warn the servant of the character of the risk he is about to take, if it is known to the master.
    4. Same.
    It is not necessary, in order to recover in such a case, to prove that the horse had previously done similar mischief to the knowledge of the defendant; it is sufficient that what the defendant previously knew of the disposition and conduct of the horse would lead a reasonable mind to infer that the horse was likely to behave as he did.
    Appeal by defendant from judgment entered upon the verdict of a jury.
    
      M. IÍ. Hirschberg, for app’lt; Francis G. Devlin, for resp’t.
   Sedgwick, Ch. J.

The action is for damages alleged by the complaint to have been suffered by the plaintiff from his being-bitten and kicked by a vicious and dangerous horse, known by the defendant to be vicious and dangerous. At the time of the occurrence the plaintiff was employed by the defendant as hostler, and it was part of his duty to care for the horse. When he was injured he was in the stall, about to feed tlie horse.

The first position taken for the appellant is that there was no evidence that the horse was dangerous and vicious or accustomed to attack and hurt any person handling and caring for him. On the circumstances in evidence, and on inferences that might be drawn from them, the plaintiff was entitled to the judgment of the jury on this point.

It is further argued that if the horse was vicious there was not the slightest proof that the defendant knew it. On the trial the plaintiff claimed that the relation of the employees of the defendant was of such a kind that their knowledge was the knowledge of the defendant One of these, named Totten, was the superintendent of the stable, which contained about 1,000 horses. It was the duty of the defendant to the plaintiff as its employee to use a reasonable degree of observation to ascertain the character of the horses, and to prevent any horse that was dangerous being kept in a stall for the work of a man upon it. If Totten was in the performance of this duty upon the delegation of the defendant, and that was a question of fact proper for the jury, the jury might have also competently found that Totten was informed of the viciousness of the horse and for that reason had caused him to be transferred from one floor to another. Under the circumstances proved, it should he held that Totten’s knowledge was the knowledge of the defendant.

The other employee was one McQuaid. His employment did not have as wide a scope as that of Totten. In the stable he assisted in grooming horses, but he was not amere groom. He had charge, with two or three men under him, of a gang of sixteen horses. These were particular circumstances tending to show that he was a servant of more authority than the grooms. The evidence was such that the jury would be authorized to find that part of McQuaid’s duties was to look generally after the horses in his charge, to notice whether any were vicious and to cause its removal or that a groom should not be sent into the stall with it. If such were the case, he was an agent of the defendant in this regard and it was bound by his knowledge. There was testimony for the jury that McQuaid had knowledge that the horse was dangerous.

The learned counsel for the appellant objects that the judge left it to the jury to say whether the knowledge óf McQuaid was the knowledge of the defendant. The objection would be well founded if the testimony incontrovertibly showed that the relation of McQuaid to the defendant was such that his knowledge could not be imputed to defendant. As we have already said, the jury could find that the testimony as to McQuaid’s employment signified that he was in the place of the defendant performing certain duties which it was bound directly to the plaintiff to perform.

The court was asked by defendant to charge the jury that even if the men employed in the stable to keep and take care of the horses did know1 of the horse’s viciousness, that fact did not charge the defendant with notice or knowledge. The court correctly refused to make this charge. The charge included McQuaid, and we. have already held that, for the purpose involved, the jury might find he held the place of the defendant.

It was objected to the countercharge that if Tait, a stable man, told McQuaid that the horse was vicious, that was sufficient to put the defendant on inquiry, and that if the defendant did not inquire, the jury could find that it had notice that the horse was vicious. This charge seems correct, when viewed with that part of the charge that instructed the jury to find in substance whether it was part of McQuaid’s duty to observe what was the character of the horse. The court made a specific reference to this by saying that if McQuaid wras the person in charge of the horse, then such a notice to McQuaid would be notice to the defendant 'and put it on inquiry. There wras nothing objectionable in the charge' that this inquiry, if made by McQuaid, would have undoubtedly resulted in ascertaining what sort of a horse it was. From the testimony in the case there is no doubt that McQuaid could have learned the character of the horse as it was.

The defendant excepted to the refusal of the court to charge that if the horse from the time of his purchase by defendant had been fed and cared for in the manner the plaintiff was required to feed and care for him, without to the defendant’s knowledge attacking or injuring any person while so being fed and cared for, the defendant was justified in believing that it was safe for the plaintiff to feed and take care of him and the plaintiff could not recover. The request does not seem to have been correct; if the defendant had no knowledge of whether, the horse was dangerous in the stall or whether he was not, a belief that he was not dangerous would have been justified.

There was an objection to the court instructing the jury to find whether the defendant owed a duty to plaintiff to instruct him with respect to the character of the horse in question. There was such a duty, if, as the jury might find, the horse was dangerous and known to be so by McQuaid who put the plaintiff to work upon the horse. The employment was to attend to horses not vicious or dangerous. ' If the plaintiff were ordered to tend a horse that was dangerous and vicious it was the duty of the employer to warn the servant of the character of the risk he was about to take, if it were known to the employer.

The court refused to charge that the plaintiff, in order to recover, must satisfy the jury that the horse in question had, prior to the accident, done mischief similar in character to that complained of, and that the defendant knew it. The refusal to charge was correct. For it was sufficient to create liability on this point that what the defendant knew previously of the disposition and conduct of the horse would lead a reasonable mind to infer that the horse was likely to behave as he did in the present instance.

The defendant requested a charge that the declarations of the men employed by the defendant in the stable and shop as to the habit and disposition of the horse are not competent or sufficient to charge the defendant with knowledge. This was charged by the court, and then there was a charge as to the effect of such declarations, if they were made to McQuaid. This subject has already been referred to. There was no error.

Judgment and order affirmed, with costs.

Gildersleeve, J., concurs.  