
    Frederick Bischoff, Resp’t, v. Michael Schulz, App’lt.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed May 27, 1889.)
    
    Negligence—Burden op pboop to repel presumption op, on whom.
    Defendant hired a horse of plaintiff. The latter, in an action brought to recover damages, proved that the horse was in sound condition when delivered to defendant, and also introduced the testimony of two veterinary surgeons who doctored the horse and pronounced him foundered, and that foundering was usually due to careless treatment. Meld, that the burden was on defendant to show that he was not guilty of the negligence that caused the injury, and that a motion to dismiss was properly denied.
    
      Thomas Reginald, for resp’t; Hirsh & Rasquin, for appl’t.
   Osborne, J.

On May 30, 1888, defendant hired a horse from plaintiff, to drive in a team with his own horse “down the road.” Defendant returned the horse in the evening of that day, and soon after it was discovered that he was foundered. Plaintiff brings this action to recover damages, claiming that the horse was foundered by defendant’s negligence. Plaintiff had a verdict, and from the judgment entered thereon, and the order denying motion for a new trial, defendant appeals.

The appellant maintains that the learned trial judge erred in denying the motion for a non-suit, and also that there was no evidence to show that the horse was injured by defendant’s negligence.

Plaintiff proved that the horse was in a sound condition when delivered to defendant; that when the horse was returned the same evening, he was covered with sweat, sick and drooping, and the next day was so stiff that he could not be got out of his stall.

Plaintiff also introduced the evidence of the two veterinary surgeons, who doctored the horse, and pronounced hm foundered; they testified that foundering was usually due to careless or negligent treatment.

Plaintiff thus established a prima facie case, and the burden was then on defendant to show that he- was not guilty of the negligence that caused the injury. Collins v. Bennett, 46 N. Y, 490. The motion to dismiss at the close of the plaintiff’s case was therefore properly denied.

Defendant sought to show that he was careful and prudent in the use of the horse; that the horse was sick when delivered to him, and that his foundering was owing to plaintiff’s misuse of the horse before he was delivered to defendant.

Here was plainly an issue established, which it was the province of the jury to pass upon, and we think it would have been error for the learned judge to have taken it from the jury. The rules of law applicable to the case were fairly presented in the charge of the learned trial judge, and the issue of fact as to defendant’s negligence was found against the defendant, and we cannot say that the verdict was against the weight of evidence.

The exceptions of folios 123 and 130 to the testimony of the witness on the ground that he was not an expert, are not well taken; the question at folio 123 simply asked as to the knowledge of the witness; at folio 125 the same witness showed himself to be an expert as to the value of horses, and thereby completely answered the objection and exception at folio 130.

The other exceptions are also untenable. Judgment and order denying motion for new trial affirmed, with costs.

Clement, J., concurs.  