
    Hyman Axlebrood, Appellant, v. Frank E. Rosen et al., Respondents.
    (Supreme Court, Appellate Term,
    September, 1897.)
    iregligencé — Res ipsa loquitur — Unnecessary collision in a street.'
    Where a horse and wagon lawfully standing in a street in'" front of a house in order to deliver goods, are unnecessarily - run into and damaged by the team and truck "of the defendant which came süddenly around a corner, and' were' ‘ apparently facing, with another ■team, the nature of the accident affords priina facie proof off negligence upon the part .of the defendant, and throws upon him the. burden of showing that he exercised such : care' in the matter as prudence would require. ' ’ " . ,"
    . Appear by plaintiff from judgment of the .Fifth Judicial District ..Qourt.
    S. I. Frankenstein, for appellant.
    Jacob Levy, for respondents.
   McAdam, J.

The .action, was, to recover damages for. in juries to plaintiff’s, liorse and wagon alleged to have been caused by the .defendants’ .negligence.., ...

The plaintiff had stopped with his wagon in front of Ro¿ ,125 Henry: street to deliver, butter;, and bis temporary. occupation of the highway. for that purpose was legal. Goff v. Akers, 1 Misc. Rep. 468; aff’d, 139 N. Y. 653; Callanan v. Gilman, 107 id. 360. His wagon, was on the. right side - of the street close,to. the curb,, with .the horse’s Read, fumed toward, Pike street,, when the defendants’ team.,and. truck came into Henry street on,a ryn,; followed by a wagon drawn,by, a single horse,.’.with wbipb- the.,.defendants’...driver appeared, to he racing. The latter .Rad,.the load, and was apparently determined to maintain it. Althoughthere. was plenty of room in the highway for the truck to pass in safety the defendants’ driver for some,,unaccounted /reason..ran-r-hist team.- and truck against the plaintiff’s horse and wagon, causing the injuries e’ÓRplEnéd ■' • ■'

The plaintiff’s horse was subsequently attended 'to- by kveterinary surgeon, and the wagon repaired by a wheelwright. The plaintiff and the wheelwright testified as far as permitted to the damage done. The evidence sufficiently establishes that the injuries were caused by the defendants’ want of ordinary care according to "the circumstances, in violation of the implied legal duty owing to'" the plaintiff, thus constituting actionable negligence (Abb. Tr. Ev. 583, 584); and that the plaintiff was free "from any contributing fault. 2 Shearm. & Redf. Neg. (4th ed.) 509; Crocker v. Ice Co., 92 N. Y. 652; Sykers v. Lawlor, 49 Cal. 236.

The nature of the accident itself affords prima facie.proof of . negligence, for the rule is that where the accident is one which in the ordinary course of events would not have happened but for the want of proper care on the part of the defendant, it is incumbent upon him to show that he has taken such care as prudence would require. Scott v. London & St. K. Docks Co., 3 Hurlst. & Colt. 596; Curtis v. Railroad Co., 18 N. Y. 534, 544; and cases cited in Russell Mfg. Co. v. N. H. Steamb. Co., 50 id. at p. 127; Mullen v. St. John, 57 id. 567; Volkmar v. Man. Ry. Co., 134 id. 420.

The trial justice without requiring any explanation whatever from the defendants dismissed the plaintiff’s complaint, on the ground that the damages were uncertain and that upon the entire evidence the justice did not think the plaintiff ought to prevail. This ruling was evidently founded on a misconception of the evidence and the law applicable thereto. The plaintiff made out a clear prima facie case, and ought to have prevailed in the absence of proof on the part of the defendants explaining their conduct and exculpating them in some legal manner therefor. The plaintiff certainly proved a substantial injury, and was entitled to recover some damages, the amount of which it is now necessary to discuss. See Hutton v. Murphy, 9 Misc. Rep. at p. 151; 1 Suth. Dam. 100, and cases cited.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Daly, P. J., and Bischoff, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.. • -  