
    Wolfe v. Mersereau.
    When a horse of the plaintiff, while being driven in a public street, is killed, without fault or negligence on his part, by the careless management of a span of horses and wagon of the defendant, driven at the time by his servant; the defendant is not exempt from liability because the direct cause of the casualty was a driving, designedly, by defendant’s servant, against the wagon of a third person, to save himself from greater peril, if that act was one which the pecuniary interest of the defendant required the servant to perform.
    On such a state of facts, it is an act done in the regular course of his employment, and in the proper performance of his duty, and although he did it, because he saw in it a refuge from a greater personal peril, the defendant is not exonerated from liability, it having been rendered proper, if not necessary, at the moment it was done, in consequence of the previous negligence of the servant, for which the master is liable.
    (Before Duer, Bosworth and Hoffman, J.J.)
    May Term, 1855.
    This action, was tried before Mr. Justice Slossom, and a jury, on the 13th of December, 1854.
    • It came before the General Term, on exceptions taken to the charge of the Jndge.
    It is brought to recover the value of a mare belonging to the plaintiff, and alleged to have been killed while being driven in Eiffch avenue, near 32d street, by the negligent, careless, and improper driving of a wagon and horses of the defendant, and by his servant. The second cause of action, stated the negligence to consist in harnessing a new, strange, and vicious horse, with a horse of the defendant, and in improperly harnessing or driving the horses. ,K
    Portions of the testimony of Charles Lowe, who was driving the plaintiff’s mare, and of Thomas Williams, who was driving the defendant’s horses and wagon, at the time of the casualty, presents the case, as it substantially appears on the whole evidence. Charles Lowe, being sworn, testified as follows:
    I was driving Wolfe’s horse in June, 1854; it was a mare; the wagon to which the horse was harnessed, was a fight wagon; Mr. Stevens’ son was with me; we were driving up the Fifth avenue, at the rate of about six miles an hour; there were some two or three wagons on the right hand, between us and the sidewalk; at the time that the accident happened, I was driving along, heard some one call out, “Take care;” I looked around and saw Merse-reau’s wagon directly behind me, coming up very fast; I endeavored to give him the road, and pulled inside of a feed wagon that was on the road, to the left; the young man who was with me jumped out; the defendant’s horses came up with me, and his near horse struck the near wheel of our wagon; the mare fell sideways, upon her back; the lines were unbuckled; she made two or three lunges to get up; she finally succeeded, and ran across the street, where she again fell; she subsequently died from the injuries she then received; I remained in the wagon till it upset; Mersereau’s horses struck the feed wagon, and both fell; when I first saw them I was about a block off; my object in turning out was to give them the road; Mersereau’s wagon struck the feed wagon and broke its wheel, and threw Mersereau’s horses down; I had no idea that they were running away when I first saw them; they were coming up at about twelve miles an hour, when I first saw them, and one block off; I asked the persons in Mersereau’s wagon, how they came to chase me up so; they said they could not help it; I told them that they had killed my mare; they said that they would rather kill a dozen. horses than have his employer’s son, who was with him, hurt; there were no sidewalks at that place in the avenue.
    Thomas Williams testified as follows: — I was Mersereau’s coachman in June last; I drove this team of horses at the time the accident happened; one of the horses belonged to defendant, and one to somebody else; I went from the stable in 32d street; the two horses were harnessed to a light wagon; myself a»d young Mersereau were in it; we met a stage which frightened the horses; one of them commenced to kick, and then they ran; one of the horses acted as if he wanted to get out of the harness; they ran to 36th street; I found I could not stop them; the horses were running; while running, one of the horses got the crupper off; this was the new horse that we were trying; we escaped every thing until we got between 44th and 45th streets; I then saw this feed wagon, Wolfe’s wagon, and other vehicles; I saw there was no chance for me to get through without hitting something; I ran into the feed wagon as hard as I could; we tit it, and were bdtt thrown out; we tit the feed wagou ou the left tiud wheel; at the time that we struck the feed wagon, the grey mare was ahead of the horses of the feed wagon, and the body of Wolfe’s wagon was opposite the heads and shoulders of the team of the feed wagon; my wagon was thrown over; when I got up, I found the horses both lying there; I could not have passed to the right of the feed wagon; there was not room; first saw the grey mare when about as far off as across the court room; the mare sheered off to the left of the feed wagon; I saw Wolfe’s coachman perhaps a minute after the collision; he came up to me. (On being shown a diagram.) This diagram represents the vehicles as they were at the time. The effect of the crupper getting off the horse was that he got his head down, and that prevented me from stopping him; the harness and lines were new and strong; I have been a coachman some time; the horses were harnessed as usual; I had been a coachman one year and a half in New York, before this happened; Wolfe’s wagon had passed the feed wagon when the collision occurred; as near as I can recollect, the interval between Wolfe’s wagon and the feed wagon; I supposed at first I could go through, but on nearing the feed wagon I saw that I could not.
    On being cross-examined; I was in a ticklish position; I had time only to look out for myself; I did not draw out the diagram ; I don’t know the scale it was drawn upon; there are no sidewalks there at all; the feed wagon was nearer the east than the west side of the avenue; there were no wagons directly opposite the feed wagon; there were at least four dirt carts between the feed wagon and the left side of the wagon; I mean to say that, driving at the rate at which I was, I saw these, different wagons; I was trying one of the horses; he was represented to be a country horse; the horses were harnessed as usual; they had collars, saddles and belly-bands; the belly-bands were not strapped tight; they were not as tight as you would gird a saddle; they had cruppers but no breechings; the rear part of "Wolfe’s wagon at the time of the collision had passed the feed wagon, and was opposite the heads and shoulders of the feed wagon horses; I was giving all the attention I could to my horses, but I had to look to my road too; I had a whip but did not use it.
    The Judge charged the jury:
    That if the damage was caused by the negligence of defendant’s servant, defendant was liable. The jury were to determine whether negligence had been proved. It is alleged to have consisted first in harnessing a strange horse with another, and driving through a crowded street. But as to this point, the simple fact that the horse was a strange one is not, of itself, evidence of negligence, there being no evidence to show that he has been vicious, nor what his character or habits were, nor whether accustomed to the harness or not. Second, in the manner of harnessing the horses. Upon this point the evidence is, that the harness was new and strong, and properly adjusted. Third, in the manner of driving, generally, and that alter they had run away, they were not properly guided. On these points the jury were to judge for. themselves.
    If there was any fault on the part of those engaged in driving plaintiff’s wagon, he could not recover.
    It is admitted by the plaintiff in his complaint, that the defendant’s horses ran away; and if the jury should be of opinion that this was in consequence of a cause beyond the control of the persons in it, and without the fault of the defendant’s servants engaged in driving them, and they did all which, as prudent men, they could do to prevent the catastrophe, then it was merely a misfortune, and the defendant is not liable, and is entitled to a verdict.
    So also the verdict should be for the defendant, if the collision, whether accidental or not, was not, in the opinion of the jury, the result of the defendant’s fault.
    The counsel for the plaintiff requested his honor, after the delivery of his charge, farther to charge the jury:
    
      “ That if it was prudent for the defendant’s servant to run against the feed wagon to stop his horses, and thereby occasion this injury, the defendant is liable, although his servant did so to save himself from greater peril.”
    His honor so charged, with the proviso, that the plaintiff’s wagon was at the time in such a position, with reference to the feed wagon, as prudence would justify.
    
      To tbis part of tbe charge tbe defendant’s counsel excepted.
    Tbe jury found a verdict of $500, in favor of tbe plaintiff.
    Tbe Judge thereupon ordered tbe questions of law arising upon tbe trial, to be beard in tbe first instance, at the General Term, and tbe entry of judgment, in tbe mean time, to be suspended.
    Tbe questions of law were beard at tbe General Term, pursuant to such order.
    
      Jas. N. Platt, for plaintiff.
    
      A. Schell, for defendant.
   By the Court.

Bosworth, J.

Tbe Judge presiding at tbe trial, charged tbe jury that there was no negligence, on tbe facts proved, in harnessing tbe two horses together, and in driving them through tbe streets of a crowded city.

That as to tbe manner of harnessing them, “ tbe evidence is, that tbe harness was new and strong, and properly adjusted.”

Although we may think tbe evidence was such as to make it proper to have submitted to tbe jury tbe question whether there was not negligence in tbe manner of harnessing tbe horses, which was tbe actual cause of tbe catastrophe that followed, yet, for all tbe purposes of tbis motion, tbe defendant is entitled to have it decided on tbe assumption that such instructions were correct.

If that fact ought to have been passed upon by tbe jury, tbe court is not authorized, upon a bill of exceptions, to decide such, or any other facts, against either party.

As to tbe manner of driving generally, by defendant’s servant, and whether tbe horses were properly guided after they bad commenced running, tbe court left it to tbe jury to determine, under general instructions sufficiently favorable to tbe defendant.

There is no part of tbe charge of which tbe defendant can complain, unless it be tbe particular instruction, given at the'plaintiff’s request, at tbe close of tbe general charge.

Tbe Judge, in effect, charged tbe jury, that if there was no negligence on tbe part of tbe plaintiff in bis wagon being where it was, and if tbe defendant’s servant ran against tbe feed wagon in order to save himself from greater peril, and such act caused tbe injury, tbe defendant was liable, even if tbe act was a prudent one in order to stop tbe borses. To tbis part of tbe charge tbe defendant excepted.

It may be said that tbis part of tbe charge assumes that tbe defendant’s servant ran designedly against tbe feed wagon, with a view to save himself from greater peril. But, properly construed, it was an instruction to tbe jury, that although tbe borses may have run away without any fault or negligence of defendant’s servant, yet tbe defendant was bable, if tbe servant caused tbe injury by running against tbe feed wagon, although be ran against it solely with a view to bis own personal safety, provided tbe act was a prudent one by which to stop defendant’s borses.

It was undoubtedly tbe duty of tbe servant to arrest tbe speed of tbe borses in tbe most prudent manner, with reference to their safety, as well as that of persons and property with which they were in imminent danger of coming in collision.

I think tbe charge should be understood to mean, that if tbis act was a prudent one, with reference to tbe duty of tbe servant to tbe master, it was one which, looking only to that duty, be should have performed; and although bis thoughts may have been mainly occupied in consulting bis own personal safety, yet, if tbe act was found to be of tbis prudent character, tbe master is liable for tbe consequences of it, to others, notwithstanding tbe motive which prompted it.

Tbe charge does not assume that there was any intention to injure tbe plaintiff’s property, nor that tbe servant must have anticipated such a result would follow. It was not tbe plaintiff’s wagon against which be ran tbe borses, but another wagon, at tbe time of tbe collision near to it.

We think tbe jury must be deemed to have found the act a prudent one, so far as tbe interests of tbe defendant were concerned. If tbe motive prompting it, bad been tbe greater safety and security of tbe master’s property, tbe act could not have been said to be a departure from tbe master’s business.

Perhaps tbe charge should have been more explicit, and stated that it must not only have been a prudent method to be pursued in order to stop tbe borses, but one which would probably cause tbe master less loss, with reference to all tbe probable consequences, than would have ensued from pursuing any other course, which it then seemed practicable to adopt.

What it was intended the jury should understand by the proposition, “that it was prudent for the defendant’s servant to run against the feed wagon to stop his horses,” it is difficult to conceive, if it was not meant that by finding it a prudent act, they were to find it one, which a proper regard to the defendant’s pecuniary interests demanded. In that view, the whole request to charge assumes that the act, which the servant supposed would expose him to the least personal peril, was one which it was prudent to perform, if done with a sole regard to the master’s interests.

Still this charge may be open to the objection, that the jury may have found, that the horses ran away, from a cause beyond the servant’s control, and without any fault on his part; that there was no want of proper effort to prevent a collision with some one; that a collision with some one was inevitable, and that the act of driving against the feed wagon, was one which would produce less serious consequences to the defendant and to others, than any other that could have been done, under the circumstances.

If the jury may have so found, under the charge, and did so find, then the defendant must be charged, if at all, on the grounds; that his servant, when he did the act, was acting within the scope of his employment, and did an act designedly, which the interests of the master, and the duty of the servant to the master required, and that such act injured the plaintiff, without fault or negligence on his part.

But we think the jury, under the charge as given, may have found that the defendant’s servant was negligent in his driving generally, and after the horses had run away; and that there was no negligence on the part of the plaintiff contributing to the casualty. If they found this, the defendant is not exempt from liability, because his servant ran against the feed wagon to save himself from greater peril, inasmuch as it is also true, that the defendant’s son and his servant were exposed to the same peril, and the pecuniary interest of the defendant required the servant to perform this act.

Although the instinctive impulse of self-preservation prompted tbe act as security against a greater personal peril, it became, at tbe moment, an act of duty if not of necessity. But tbe act was made necessary by previous negligence, for wbicb tbe master is bable, and wbicb may properly be regarded as tbe cause of tbe injury. A motion for a new trial must be denied, and a judgment in favor of tbe plaintiff entered on tbe verdict.  