
    Lemuel Littlefield, Appellant, v. John H. Lawrence, Respondent.
    
      The uneontradicted testimony of a pa/rty, not impeached and whose truth is probable — it cannot be disregarded.
    
    The credibility of the uncontradicted testimony of a party to an action tried before a jury is usually a question for the jury, but the jury is not at liberty to disregard the testimony of any witness, even though he be a party, who is in nowise impeached and whose testimony is such that its truth is highly probable.
    Van Brunt, P. J., dissented.
    Appeal by the plaintiff, Lemuel Littlefield, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of November, 1902, upon the verdict of a jury for twenty-five dollars, and also from an order entered in said clerk’s office on the 11th day of November, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      William E. Gowdey, for the appellant.
    
      George A. Steves, for the respondent.
   McLaughlin, J.:

The complaint alleges that the defendant on the 9th of November, 1899, hired from the plaintiff for a specific purpose a horse, which he so negligently managed and cared for that one of his legs was broken and he had to be killed; that the value of the horse was $175, for which judgment was demanded.

The defendant admitted the hiring, but denied the other material allegations of the complaint, and alleged as a separate defense that the horse was “ balky; ” that as soon as the defendant discovered that fact he proceeded to return him to the plaintiff; while in the act of doing so, the horse, without any negligence on the part of the defendant, took fright, fell down and broke his leg. The plaintiff had a verdict for twenty-five dollars, which he moved to set aside upon the ground, among others, that insufficient damage had been awarded, which was denied, and he has appealed.

We deem it unnecessary to here consider any question other than the one raised by the motion to set aside the verdict, further than to say that there was sufficient evidence to justify the finding of the jury that the injury to the horse was caused by defendant’s negligence. Upon the question of damages we are unable to find any basis which would have justified the jury in rendering the verdict which they did. The plaintiff testified, after qualifying himself to testify as to the value of horses, and his evidence was uncontradicted, that the fair market value of the horse in question was $175, and in answer to a question put by the court, he stated that only a short time before the horse was injured he paid $125 for him in the State of Wisconsin, and had incurred the additional expense of transportation from that, State to the city of New York. It was undisputed that the horse was what is termed a “ green ” one, that is, a horse unaccustomed to city sights and sounds, had never been driven or worked single, and defendant, through his agent, was so informed when the horse was hired. Notwithstanding this information, the defendant attached the horse to a truck, and after a small load had been placed thereon, the horse refused to go, whether through viciousness or because he did not know what was wanted of him, the record does not disclose. He was then taken from the truck and put in with another horse, and, so far as appears, performed the work required of him until he was injured by reason of careless management. The only evidence offered on the part of the defendant, to contradict the value of the horse as testified to by the plaintiff, was his own testimony, in which he stated, when asked as to the value : “I do not see how he could be worth anything if he refused to work,” and the testimony of his witness Wagner, who said: “ I would not give anything for him ; he would not work.” But on cross-examination, when asked if the horse would work well in a team, if he would then say he was worthless, he answered: “Not as a team horse. I would not. No.” This is all the evidence that was offered as to the value of the horse and it is apparent from it that a verdict for twenty-five dollars cannot be permitted to stand. The fact that the horse refused to go when attached to the truck is no evidence whatever that it was worthless, inasmuch as it appeared that he had never been broken to work in that way, nor was it any evidence that the horse was vicious, especially in view of the testimony of the plaintiff’s witness Sheldriek, who testified that he had driven the horse with another one and that he always appeared docile and of a good disposition.

This being the condition of the evidence at the close of the trial, we are of the opinion that the learned presiding justice should have granted the plaintiff’s motion to set aside the verdict as clearly against the weight of evidence. The plaintiff lost his horse by reason of the negligence of 'the defendant. The jury so found, and, this being so, it necessarily followed that the plaintiff was entitled to recover all of the damages which he had sustained, such damages, of course, to be measured by the value of the horse. The only evidence of value upon which the jury could predicate a finding on that subject, taking all of it into consideration, was the amount stated by the plaintiff, viz., $175.

It is true that the credibility of the uncontradicted testimony of a party to an action is usually a question for the jury. So is the credibility of every witness, whether interested or not, but a jury is not at liberty to disregard the testimony of any witness, even though he be a party, who is in nowise impeached, and whose testimony is such that its truth is highly probable. (Denton v. Carroll, 4 App. Div. 532; Elwood v. Western Union Telegraph Co., 45 N. Y. 549; Cunningham v. Gans, 79 Hun, 434; Kelly v. Burroughs, 102 N. Y. 93.) And whenever it does so, then the verdict rendered is not such as the law recognizes and will not receive the sanction of the court when brought under review. It would be a discredit to the administration of justice and tend to bring it into disrepute if any other rule were permitted to prevail. (McDonald v. Walter, 40 N. Y. 551; Brown v. Foster, 1 App. Div. 578.)

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event of the action.

Patterson, Ingraham and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  