
    Paine v. City of Rochester.
    
      (Supreme Court, General Term, Fifth Department.
    
    April 16, 1891.)
    Municipal Corporations—Engine in Street—Runaway Team.
    In an action against a city for injuries to plaintiff’s horse and buggy, it appeared that the horse was scared by a large engine which was being used to roll defendant’s street along which plaintiff was driving. A man 76 years old, who was employed by defendant to protect travelers from injuries by the engine, seized plaintiff’s horse by the bridle and attempted to restrain it, but was thrown down, and the horse ran away. There was evidence that defendant was negligent in keeping the engine in motion when plaintiff’s horse was approaching, in omitting to provide proper signals and protection, and keeping a man inadequate by reason of his age to perform the duties required. There was no evidence of contributory negligence. Held, that the question of defendant’s liability was properly submitted to the. jury, and their verdict would not be disturbed.
    Appeal from Monroe county court.
    Action by John Paine against the city of Rochester.. There was a judgment for plaintiff, and defendant appeals.
    Argued before Dwight, P. J„ and Macomber and Corlett, JJ.
    
      Henry I. Sullivan, for appellant.
    
      Eugene Van Voorhis, for respondent.
   Corlett, J.

The action was originally brought in a justice’s court of the town of Greece, Monroe county, to recover damages for injuries to the plaintiff’s horse and buggy and some other articles of property. The justice rendered judgment for the plaintiff for $200 damages. The defendant appealed to the county court of Monroe county for a new trial, which was had, and resulted in a verdict of like amount. Judgment was entered, and the defendant appealed to this court. The plaintiff resided in the town of Greece, and on the 26th day of June, 1889, his wife and himself started with a horse and buggy to goto Rochester, where they intended to take a train for Canandaigua to attend a wedding. When they reached Lake avenue, which is one of the public streets of the city, there was a heavy steam-roller operated by steam being used to level the street. The engine was from 12 to 20 feet in length, and puffed considerable steam when in use. The plaintiff’s horse became frightened. A man 76 years of age was upon the street for the purpose of protecting traveler's from injury by the engine on the day of the accident. He seized the plaintiff’s horse, but was thrown down, the horse ran away, and the plaintiff and his wife were thrown out, and the buggy and other property injured. The evidence tended to show that the defendant was guilty of negligence in keeping the engine in motion when the plaintiff’s horse was approaching; also in omitting to provide proper signals and protection, and in keeping a man inadequate by reason of age to perform the duties required. It also tended to show that the plaintiff was guilty of no negligence which contributed to the injury. He had a right to travel on the street, and assume that it was in proper condition. Pettengill v. City of Yonkers, 116 H. Y. 558, 22 H. E. Rep. 1095. At the close of the evidence a motion was made for a nonsuit, which was properly denied. Ho exception was taken to the charge of the trial court, which was full and clear on every material question. The case was properly submitted to the jury, and, no errors appearing, the judgment must be affirmed. All concur.  