
    John Nocera, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    June 8, 1906.
    Negligence — injury to horse by collision with car'—failure to show that death of horse was caused by collision — erroneous charge.
    The plaintiffs horse was injured by a collision with defendant’s car alleged to have been caused by the negligence of the defendant. The proof showed that the horse was bruised, but there was no evidence connecting the subsequent death of the horse with the injuries proved.
    
      Held, that a verdict for the plaintiff for the full value of the horse should be reversed;
    That on such proof it was error to charge that there was a legal presumption that the death of the horse was caused by the injury.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of Mew. York in favor of the plaintiff,- entered in the office of the clerk of said court on the 1st day of June, 1905.
    
      H. F. Ives, for the appellant.
    
      M. A. Gallucci, for the respondent.
   Hirschberg, P. J.:

The action is brought to recover damages to personal property alleged to have been caused by the negligence of the defendant. While the plaintiff’s servants were driving his team and wagon in the borough of Queens on the night of January 25, 1905, a collision occurred with one of defendant’s cars, damaging the wagon and knocking down one of the horses. The horse received bruises upon its side which, while severe, were not essentially serious in character. There were bruises on his shoulder, an abrasion of the skin on his fetlocks and sores and swellings of the cords from the hock to the fetlocks. A witness, presumably a veterinarian, testified that, at the plaintiff’s request, he treated the horse on January thirty-first, and on February third and fifth. After the last-named date, he saw the horse on the fifteenth of February dead. " The judgment recovered is chiefly for the value of the horse. There was, however, no evidence in the case tending to prove that the horse; either could, or did, die from- the injuries which were received in the- collision; anfi while there is an intimation or suggestion con- ' tained in the evidence offered-on behalf--of the defendant that the injuries might have produced the death of the horse by the supervention of blood poisoning or lockjaw, there is no evidence that they did so. . . • , ■

The plaintiff’s witness who prescribed for.the horse was asked the question, “ When you saw, him there was nothing in his injuries, to make you think he was going to die ? ” to which he replied, “Well, .the horse was improving.” - The veterinary surgeon called by the defendant testified that he examined the horse on February first; that he found • certain abrasions only; that most of them were then beginning to heal; that' he thought they were of at least a.week or ten days’ standing, and when asked if the horse-could die by. reason of any of the injuries which he-found when lie .made his examination, he answered, no; that the injuries themselves. could not kill.. It is true that he did suggest, as already stated, that the injuries, could have' produced death by the intervention of lockjaw and blood, poisoning, but that they actually did so produce the death of the ’horse there is no word' of proof to be found in the case. - "

It was easy to make direct proof of the cause, of death, even without a post mortem. It Was sufficient for the plaintiff to.-prov-e that the injuries inflicted upon the horse Were adequate to cause death, or, if not adequate of themselves, that they afterwards resulted in a condition which was an adequate cause of death,- and -that nothing but the accident had occurred to which rue death could be attributed., ' ' . ■ -

.The court erred in instructing the jury to the effect that in the absence of evidence as to the cause of death there Was a legal presumption that it occurred from, the accident. It was incumbent V on the plaintiff to- establish the death as a. result of the -accident by a fair preponderance of 'evidence, and there is no presumption of law in favor of the claim. The question was duly raised by á motion to strike out all the testimony as. to the value of .the horse, on the ground that it had not been shown that the- injuries caused his death, and by an exception taken to the submission of the ques-. tion to the jury. The court charged as follows: “There is'no absolute testimony that these injuries were the cause of the death of, the horse. That simply left a presmnption. They had medical men on the stand, and neither of them testified that these injuries caused his death. It is for yoii to determine that. You must take into consideration the testimony of Dr. Wright, that when he left the horse last the horse was in good condition and getting better under his treatment.” The logic of the verdict under this charge is that the jury, having absolutely no evidence that the injuries either did cause or could have caused the horse’s death, and being obliged to take into consideration the fact that when last seen by a surgeon he was in good condition and getting better under treatment, must have determined the cause of death adversely to the defendant on the -presumption alone. '

The judgment should be reversed.

Hooker, Gaynor, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  