
    Henry E. Gropp, Respondent, v. The Great Atlantic and Pacific Tea Company, Appellant.
    First Department,
    December 9, 1910.
    Pleading—action for injuries caused by horse—practice — amendment at trial stating vicious propensities of horse — animals — duties of one owning unmanageable horse —• knowledge of driver imputable to master.
    Although the complaint in an action to recover for personal injuries merely alleged that the plaintiff, a pedestrian, was knocked down by the defendant’s horse, which was negligently driven, if the defendant’s own evidence shows, that the horse was running away, and that the driver knew him to be unruly, easily frightened and that he had frequently attempted to run away, the. court has power to amend the complaint by inserting an allegation to the effect that 
      the animal was unruly, unmanageable and vicious, which the defendant knew or ought to have knpwn in the exercise of reasonable care.
    The defendant cannot contest such amendment on the ground of surprise where his own witness testified that the horse was vicious, and the plaintiff ■ twenty days before trial served notice that upon the trial he would move to amend the bill of particulars by alleging that the horse was unruly, unmanageable and vicious.
    An amendment to a complaint may be allowed under section 723 of the Code of Civil Procedure where it' does not set up a new cause of action, so that a recovery on the original complaint would bar a recovery under the amended complaint.
    The owner of a domestic animal is bound to take notice not only of the general propensities of the class to which it belongs, but also of any propensities peculiar to the animal itself. If such propensities be of a nature to cause injury he must anticipate and guard against them.
    A driver’s knowledge that a horse is unmanageable and inclined to run away is chargeable to his master.
    The question of the defendant's negligence in driving a restive horse upon the street at the time and place in question is for the jury.
    Ingraham, P. J., and Laughlin, J., dissented, With opinions.
    Appeal by the defendant, The Great Atlantic and Pacific Tea Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 9th day of February, 1910, upon the verdict of a jury, for $5,500, and also from an. order entered in said clerk’s office on the 11th day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      William H. Pede, for the appellant.
    
      Don B. Almy, for the respondent.
   McLaughlin, J.:

The plaintiff, while lawfully using one of the public streets in the city of Mew York, was knocked down and injured by a horse owned by the defendant, and brought this action to recover the damages sustained thereby. He had a verdict of $5,500, and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.

The complaint, in the form in which it was at the time when the parties went to trial, charged that the plaintiff’s injuries were caused solely through the careless, reckless and negligent manner in which the horse was being driven at the time in question. These aliegations were put in issue by the answer. ■ At the trial, after plaintiff rested, defendant produced as a witness the driver of the horse, who testified that at the time plaintiff vvas injured the horse was running away; that he had, a short time prior thereto, become frightened at some object in the street and gotten beyond his control ; that he did the best he could to hold him and prevent running into plaintiff, but was unable to do so ; that he had never run away with him before, but he had had. trouble with- him ; that he would shy at everything in the street and would not stand' under the elevated railroad, and would. try to get away. On cross-examination he testified that every time he drove him the horse would stand on his hind legs and try to get away; that he was afraid of trolley cars, would not stand under the elevated railroad ; would become frightened at pieces .of paper in the gutter, and- that he had once started to run away but vvas stopped by a police officer. After both parties had rested, defendant’s counsel moved to dismiss the complaint on the ground that .there was no evidence of negligence on the part of the defendant, and it affirmatively appeared that' the horse was at the time running away and had gotten beyond control of the driver without fault on his part. Plaintiff’s counsel thereupon, at the suggestion of the learned trial justice, moved to amend the complaint by inserting an allegation therein to the effect that the horse was unruly, unmanageable and vicious,” all of which the defendant knew, or ought, in the exercise of reasonable care, to have known. The amendment was objected to by defendant’s counsel, but the objection was overruled and an exception taken, and the amendment granted. This exception presents the principal question raised on the appeal, the contention being that the amendment substituted an entirely new cause of action.

I am of the opinion that under the facts presented the court had the power to (Code Civ. Proc. § 723) and properly granted the motion to amend. (Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646; Lustig v. N. Y., L. E. & W. R. R. Co., 65 Hun, 547; Martin v. Home Bank, 160 N. Y. 190; 1 Ency. Pl. & Pr. 564; Barnum v. Williams, No. 1, 91 App. Div. 464.)

The amendment did not, in my opinion, substitute a new cause of action. The same judgment was demanded and plaintiff’s claim thereto -was based upon the same injury caused to him at the same time and place by the wrongful act of the defendant. The original complaint was simply amplified by setting forth additional facts why the plaintiff should recover. The complaint, before the amendment, sought a recovery on the ground of negligence, that is, the negligent manner in which the horse was driven, and after amendment it sought a recovery upon the same and an additional ground, which additional ground was the negligence in attempting to drive,.-' upon a public street, a vicious horse which was likely to run away and do injury to others. In determining whether or not a new cause action is introduced, the test as laid down in Davis v. N. Y., L. E. & W. R. R. Co. (supra), is : “A fair test to determine as to whether a proposed amendment of a complaint is allowable under the provision of the Code of Civil Procedure (§ 723) in reference to such amendments, or whether it sets up a new cause of action, is, would a recovery on the original complaint be a bar to a recovery under the amended complaint.” If that test be here applied, it seems to me clear, as heretofore said, that a new cause of action was not introduced by the amendment. The defendant owed the plaintiff a duty, which was to use reasonable care in the management and control of the horse which injured him and if it did not do this then it was answerable in damages. The court, in referring to this rule in Vandenburgh v. Truax (4 Den. 464), said : “ It may be laid down as a general rule that when one does an illegal or mischievous act which is likely to prove injurious to others, and when he does a legal act in such a careless and improper manner that injury to third persons may probably ensue, he is answerable in some form of action, for all the consequences which may directly and naturally result from his conduct * * *. It is not necessary that he should intend to do the particular injury which follows; nor, indeed, any injury at all.” This rule was applied in Dickson v. McCoy (39 N. Y. 400), where plaintiff, while using one of the streets in the city of Troy, was injured by defendant’s horse, which was unattended upon the street. The complaint in that casé alleged that the horse was of a malicious and mischievous disposition and accustomed to attack and injure mankind, but the proof failed to sustain this allegation. The court, however, held that this was not material: that “ It is not necessary that a horse should be vicious to make the owner responsible for injury done by him through the owner’s negligence. The vice of the animal is an essential fact only when, but for it, the conduct of the owner would be free from fault.”

The owner of a domestic animal is bound to take notice not only of the general propensities of the class to which it belongs, but also of any particular propensities peculiar to the animal itself, and if such propensities are of a nature, to "cause injury, he must anticipate and guard against them. (Hammond v. Melton, 42 Ill. App. 186.) If the animal be given an opportunity to exercise such propensities, through the negligence of the owner, he will be liable to persons injured without fault on their part. (Mills v. Bunke, 59 App. Div. 39; Thomas Neg. 508.) A party who puts a dangerous animal upon the streets of a public city does so at his peril. (Mahoney v. Dwyer, 84 Hun, 348.)

Here, the horse in question had manifested a disposition to ru^ away every .time he had' been driven upon the street, which fact was well known to the defendant’s servant to whom was intrusted its care and management. The servant’s knowledge on this subject was the knowledge of the master. (Clowdis v. Fresno Flume, etc., Co., 118 Cal. 315; Brice v. Bauer, 108 N. Y. 428.) Did the defendant, having this knowledge, act as an ordinarily prudent man would act in driving this horse upon the street at the time and place in question? The answer was for the jury (West v. Woodruff, 112 App. Div. 133; Conway v. Rheims, 107 id. 289), and the- same was properly left to them.

. Hor was the defendant surprised by the amendment. Its own witness furnished the proof-as to the vicious propensity of the horse and its disposition, to run away every time it was driven upon the street, and besides, twenty days before the trial the plaintiff served upon the defendant a notice that upon the trial of the action he would move to amend the bill of particulars “ by alleging further the following, to wit, that the said horse'was up tame, unruly, unmanageable and vicious.” The allegation introduced by the ámendment was treated as denied by the answer. This ■ clearly appears from the issues submitted to the jury.

I am of the opinion that the judgment and order appealed from are right and should be affirmed, with costs.

Hiller and Dowling, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented. .•

Ingraham, P. J.

(dissenting):.

The action as originally brought was based purely upon the negligence of the defendant’s driver in driving the horse aud wagon which caused the injury for which the action was brought.

The complaint alleged that on the 19th day of ■ December, 1907, while the plaintiff was lawfully upon the highway he was run into, knocked down and run over by a horse and wagon owned or operated by the defendant without any fault or negligence on his part, but solely through the fault, carelessness, recklessness and negligence of the defendant, its agent, servant or employee in charge of the same: and by reason thereof the plaintiff sustained injuries, and that the defendant, .its agent, servant and employee in charge of the said horse and wagon violated certain ordinances of the city of New York, by reason of which the plaintiff was injured.

The plaintiff sought to prove this cause of action, and at the end of the plaintiff’s case the defendant moved to dismiss the complaint on the ground that there was no evidence of negligence on the part of the defendant and. that the evidence is that the plaintiff was guilty of contributory negligence. This motion was denied, and the defendant excepted. The defendant then introduced evidence which tended to, show that the driver was not negligent, but in the course of that evidence it appeared that the horse that caused the injury had been driven for five or six days before the accident; that the driver left the wagon in the street and went into a drug store to get a prescription; that on liis way back from the drug store, to the defendant’s place of business a switchman, giving signals to a street car with a red and white lamp, caused the horse to shy at this lamp, then the horse started on a run ; that the driver was unable to control him, and while thus running away the plaintiff was run over; that this horse had never run away before, but several times had shied at cars and other obstructions in the street. There was. other evidence to show that' the horse was nervous and excitable and difficult to control. The driver had driven horses in New York about a year and a half before the accident, and on ere !s-examination the driver testified that the horse was frightened at tlk elevated trains and the trolley cars, and would shy at paper in the l\Adway. ,

At the end of all the testimony the defendant renewed his motion to dismiss the complaint, when the court suggested that he would permit an amendment to the cotnplaint and make it “a case of a runaway and knowledge on the part of .the owner of the horse that it was a dangerous horse.” In that the plaintiff accpiiesced, but .the defendant strenuously objected, claiming that it was an entire change of the cause of action which the defendant had not come prepared to try and was, therefore, surprised and was not prepared to meet such issue, as he had no notice that any such issue would b.e presented. The court stated that the amendment made a different cause of action altogether, whereupon the defendant again insisted that the court had no power' to allow the amendment; that lie was taken wholly by surprise and had not come prepared to meet, any such issue; but the court granted the motion to amend the complaint, to which the defendant excepted. The defendant then moved to dismiss the complaint upon the ground that the evidence was not sufficient to sustain the cause of action based upon the character of the horse. The plaintiff then elected to proceed upon the new cause of action, when the defendant moved to withdraw'a juror on the ground of surprise, which motion was denied and the defendant excepted.

I am inclined to'think that the effect of this amendment was to set up a new and entirely different cause of action based, not upon the negligence of the driver, the cause'of action alleged in the complaint, but upon an obligation imposed by law upon one keeping or harboring a vicious animal which does not depend upon negligence.

In Molloy v. Starin (191 N. Y. 21) the Court of Appeals said that the owner of a wild animal of a dangerous character, or the owner of a domestic animal known to be vicious, is absolutely liable for injuries done by such animal to another, unless the injury was brought about by liis own conduct, and this liability exists, no matter how much care was taken by the owner of the animal for the purpose of preventing the injury. •

This being the basis of the defendant’s liability, it seems to m« clear that it is a distinct cause of action from an action for the negligent use of an animal not of a vicious disposition which caused an injury, and that it was error, therefore, to allow such an amendment to be made upon the trial without giving the defendant an opportnnity of answering the new cause of action alleged and of making proper preparations to meet it on the trial. The evidence upon which this recovery is based was brought out on cross-examination of the defendant’s witnesses, and no notice had been given to the defendant that he would be required to prove the character of the horse. Assuming that there was evidence to sustain a verdict, based upon the vicious character of the horse, the defendant has -never had an opportunity to meet that issue. If such a cause of action was alleged by an amendment allowed upon the trial, the defendant had certainly a right to interpose an answer to it. It was given no such opportunity, but the case was submitted to the jury upon a question which was not involved upon the pleadings when the evidence was given and the defendant had no opportunity of procuring evidence to meet the plaintiffs substituted claim.

It seems to me that it is a gross injustice to thus change the basis oij recovery without allowing the defendant to answer the amended c/'/nplaint and meet the new issue framed by the amendment. I Fyio think the evidence insufficient to sustain a verdict upon the /, ,ew cause of action which was allowed to be set up by this arnend- } dent. The injury was caused by the horse running away, not by ///iis nervous action or his shying at the elevated railroad or the sur.face cars. The evidence is undisputed that this was the first time j J that the horse had run away since he had been in'possession of (/ defendant. The fact that he was a nervous horse, in the habit of 1 shying at vehicles to which he was not accustomed, would not justify the defendant in anticipating that he would run away, when he had never attempted to run before the time of the occurrence in question, and I do not think, therefore, the verdict was sustained by the evidence.

Laughlin, J.

(dissenting):

I dissent on the ground that, in my opinion, by the amendment an additional count or charge of negligence is specified but nót a new cause of action, and that an amended complaint setting it forth should have been served, and the defendant should have been permitted to answer.

Judgment and order affirmed, with costs..  