
    Baruch Kahn, Respondent, v. Frederick Eisler, Appellant.
    (Supreme Court, Appellate Term,
    January, 1898.)
    (Negligence— Collision on the road — Presumption of negligence from i the speed of a horse.
    Where the proof made in .an action brought to recover damages resulting from a collision caused by the alleged negligence of the defendant tends to show that he, at the time of the collision with the wagon of the plaintiff, was driving a spirited horse attached to a light wagon, and was speeding his horse with another horse also drawing a light .wagon, there is a presumption that his horse was not under proper control; and hence, a judgment, rendered upon con- . flicting evidence, in favor of the plaintiff will not be disturbed.
    Appeal by defendant from .a judgment of the Third District Court.
    H. C. Botty, for appellant.
    L. Lowenstein, for respondent.
   McAdam, J.

The evidence on which the justice • appears to have relied establishes that on April 23, 1897, the plaintiff Was driving a Brewster road wagon up the easterly side of Jerome avenue at a moderate rate of speed; that when near One Hundred and Seventy-first street he discovered the defendant coming down the avenue driving a spirited horse before a light road wagon, speeding with another horse drawing a light wagon- to the right of defendant; that the defendant’s horse was going at the rate .of about a mile iu three minutes, -and -was east of the middle of the roadway; that when the defendant’s horse was first seen by the plaintiff the latter thought -it was a runaway and- made every effort to get out of the way, but -it came so fast : that it ’collided with his wagon before he had an opportunity .to escape. Mr. Skinner,- one of the plaintiff’s witnesses, described the occurrence as one caused by gross- negligence on the part, of the defendant; that it looked to him as though there would be a collision, and he shouted to the plaintiff to look out..

As usual in negligence cases the defendant and his witnesses gave a different version of the occurrence from that .given by the plaintiff, throwing the fault upon the plaintiff; but the circumstances were such as to warrant the justice in believing the plaintiff’s evidence and finding that the collision was caused wholly by the negligence of the defendant.

One thing is certain. The defendant was driving at such a high rate of speed, with his mind on the horse he was speeding, that it is doubtful whether he had his horse under such control as to avoid doing damage to others lawfully using the highway; and it is highly probable that the accident occurred from this cause.

The question of. fact involved was decided on conflicting evidence, That given by the plaintiff on the one hand and by the defendant on the other are irreconcilable. The justice had the witnesses before him, observed their appearance and manner of testifying, and had ample opportunity of forming an accurate judgment as to the value of the evidence given. There is nothing in the case that warrants us in holding that he erred in giving credence to the plaintiff’s version of the facts, and as no point is made as to the amount of the recovery the judgment must be affirmed, with costs.

Daly, P. J., concurs.

Judgment affirmed, with costs.  