
    George W. Johnston, Plaintiff, v. Herbert L. Stevens, Defendant.
    Fourth Department,
    January 8, 1908.
    Negligence—injury- by runaway—failure to secure boxes to wagon— proximate cause —erroneous nonsuit.
    ' A plaintiff, suing to recover for personal injuries alleged to have been caused by the negligence of the defendant in directing his servant to carry heavy boxes on a wagon not fitted with means to secure them, whereby they fell off and caused the- horses to run away and injure the plaintiff, should not -be nonsuited on. the theory that he failed 'to prove the cause of action alleged, although the off horse ■ took fright át a sheet suspended from a clothes line, if it he also shown that the -nigh hoi-se was not frightened hut held back so that the. team was under the driver’s control Until both box and driver fell from the wagon and struck the nigh horse, which then betiame frightened,- so that both horses were beyond the driver’s control. Under such circumstances the proximate cause of the runaway was the failure to secure the, boxes to the wagon -r- the negligence • alleged inf the complaint.
    McLennan, P. J., dissented.
    ■. Motion by the plaintiff, George W. Johnsfón, for a new trial upon a case containing exceptions ordered to be heard at, íhé Appellate Division in the first instance. ■
    
      The action came oh for trial at Cayuga Trial Term, January, 1907, and at the close of plaintiff’s case the trial court directed dismissal .of plaintiff’s complaint, to which plaintiff duly excepted; and the order entered thereon provided that plaintiff’s exceptions be heard in the first instance in the Appellate Division of the Supreme Court and that entry of judgment be suspended in the meantime.
    
      Frank S. Coburn and James S. Bryan, for the plaintiff.
    
      Albert H. Clark, for the defendant.
   Robson, J.:

Plaintiff was injured by a runaway team, owned by defendant, which had escaped from defendant’s servant, in whose charge it was, and' while he was engaged in the prosecution of defendant’s business. The complaint may be summarized as charging that defendant directed his servant to transport, with defendant’s team and wagon, two large packing boxes from one point to another in the city of Auburn, and that the wagon furnished for that purpose was, by reason of defendant's negligence, not provided with a wagon box, stakes or ropes by which the boxes could be secured thereon ; that the team was a spirited one and such equipment was unsafe arid unsuitable for the purpose for which it was to be used, and defendant’s servant, without any means or appliances for securing the packing boxes on the wagon, negligently engaged in the work of moving and did attempt to move said boxes with said unsafe and unsuitable team, wagon and equipment in so negligent and careless a manner “ that one of said packing boxes and defendant’s said servant fell from said wagon and thereby startled and frightened the said horses of defendant and caused them to run and get beyond the control of defendant’s said servant,” and that said team running thereafter furiously and unattended and uncontrolled by any driver collided with a wagon in plaintiff’s charge as driver thereof and caused him serious injuries, for which he seeks recovery in this action.

The. evidence in regard to the team, wagon, method of loading the boxes and the beginning of the runaway is furnished by the driver of.the team, whom plaintiff called as his witness. From his testimony- it appears that the bed of the wagon was made of plank without any sides, and that it was to some extent wet and consequently slippery. The packing boxes were large, and placed lengthwise on the wagon covered the surface of the plank platform except about six inches at the forward end. The driver after loading the boxes, without securing them by ropes or otherwise, got into the forward box, which was at least two and a half feet high, and started to drive through a lane leading from the place where the boxes.were loaded to the street. There was a turn in the lane, and as he passed this point the off horse, which was tough-bitted and somewhat nervous and excitable, was startled by the snapping of a sheet suspended from a line at or near this point, the movement and consequent snapping of the sheet being caused by the wind, which was then blowing. As he says, the off horse jumped' when the sheet snapped, and the second jump it made pitched the box and him forward and off the wagon. The jumps were as soon as the horse could make them—-they were almost instantaneous. In the twinkling of an eye, as he describes it, without any warning, he was forward, the box was on him and the horses were running away. . He further says that the snapping of the sheet caused the off horse to jump and run; and the teatii had gone some thirty-five or forty feet before the box and driver fell off. He fell between'the horses.

The trial court held, in granting the nonsuit that plaintiff’s evidence. failed to establish the cause of action which plaintiff had pleaded, in that there was no' evidence that the team was frightened and caused to run away by the fall of the box and' the driver, which alone. the complaint alleges as occasioning the runaway.

In thus holding we think that the court failed to give its due weight to some further testimony given by this same witness when further relating what occurred after the off horse was startled by the snapping of the sheet.

He says: “I had a good snug hold on the reins when the horse made her first jump; at the second jump'I braced myself and tried to hold her and the.box' gave way with me; I exerted my whole strength on it. *■ * * Comparing with the first jump she made, she jumped harder and stronger the second time than she did the first time; she jumped just.as quick as she could and gathered herself like any horse trying to get away; the two jumps were almost instantaneous; there wasn’t enough .time between the two so that I could fairly distinguish them. The nigh horse did not jump. They were moving at the time the box tipped and fell. * * * If the box touched either of the horses it touched the nigh horse. I don’t know for certain whether it did touch the horse. * * * I wasn’t in the box exactly long enough to tell you how it rested on the whiffletrees; when it went over I jumped out; I didn’t have titne to see what it was resting on. The nigh horses was the puiet one; she didn't want to run a/way; she held back until the box fell. 1 think the box went out on her side and perhaps seared her and from that time they were together. As far as I could see as the team were running down and out the laneway, the nigh horse held back; I could see out of the end of the lane and across the street and she was holding back then. I can’t say she was-jumping; the other mare was jumping and pulling and trying to get away from her; * * * I can’t say whether she was on a trot or run. * * * I observed a change in her actions from the time the box dropped the nigh horse. I don't know whether it was me scaring her getting between her, or the box. I did notice and observe the change; she was loose and the other one was pulling her away. * * * The nigh one didn’t appear to be so scared as the other one, and appeared to be holding back. She ceased 'to hold back after she got a/way, after I tipped over."

From this evidence, which we have quoted at length, it clearly appears that the team as a team was not beyond the driver’s control, was not in fact running away until after the box fell and startled the near horse. The jury, if the case had been submitted .to them, might have found from this evidence, taken in connection with the other evidence to which we have above adverted, that while the off horse had been frightened by the snapping of the sheet and was running and jumping in her effort to escape control of the driver, yet, so long as the other horse held back, the issue of her effort to escape from the driver’s control was at least doubtful, until the unsecured box with the driver therein was drawn forward on the wagon and fell with the driver between the horses;. that the near horse was frightened thereby, and. then, and not till then, escaping from the control of the'driver, joined its mate in running away, resulting in the collision by which plaintiff was injured. Such a finding would have been warranted by the evidence, and would have been clearly ■within the charge of the complaint .'“ that one of said packing boxes aiici defendant’s said sei’vant fell from said wagon and thereby startled and frightened the said horses of ) defendant and caused them, to -ran. .and get beyond, thp control of defendant’s, said servant.’’ ■ Though one horse appears to have, been frightened'ty,' and running because of, the snapping of the .sheet, yet the evidence would warrant a finding that' the fall of'the. box and the driver startled the other horse,, causing her to run and escape from the control of the driver,, and that, this fall of the driver and the box was due to negligence chargeable to defendant, and.was a, proximate' cause of the team, as a. team, running away, as the, complaint lias charged.. * " ' - •

The plaintiff’s exception to the direction of nonsuit, should be sustained,- the order directing dismissal of the complaint; reversed ■ and a new trial- granted, with costs, to appellant to abide the even t.

All concurred, except McTenUait, P: J., who dissented and voted for affirmance.

Plaintiff’s exceptions sustained and motion for new trial granted, with costs to plaintiff to- abide event.  