#### Mary J. Lynch, Resp’t, *v.*The Brooklyn City Railroad Company, App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

1. Negligence—Action fob injubies—Cause of — Question fob juby.

The plaintiff while riding in a wagon on a street was run into by defen. ant’s horses, that were running away, and was injured. The horses had. been attached to defendant’s car, and the driver was in the act of changing them to the opposite end of a car. One of the questions involved was whether the driver negligently permitted the whiffletree to drop upon the heels of the horses, thus frightening them, or whether they became frightened from the report of blasting in the vacinity and started, thus pulling tile whiffletree from the driver’s hands. *Meld,*that this was a question for the jury, and their finding cannot be disturbed.

2, Same—What may be considbbed in estimating damages.

*Held,*that it was competent to show the business and earnings of plaintiff, in order to estimate the damages for loss of time.

Appeal from a judgment entered on a verdict, and from: an order denying a motion for a new trial.

*Morris & Pearsall,*for app’lt; *B. F. Tracy,*for resp’t.

Pratt, J.

This suit is for damages for personal injuries. It seems that the plaintiff was riding in a public street, upon a milk wagon, when a span of horses belonging to the defendant, that were running away, ran into the wagon and injured the plaintiff. The horses, just previously to their running away, had been attached to defendant’s car, and the driver was in the act of changing the horses to the opposite end of the car when either the whiffletree fell on. the horses heels, or they became frightened from some other cause, and started on a swift run, with the result aforesaid.

One of the main questions of fact upon the trial was whether the driver negligently permitted the whiffletree to drop upon the heels of the horses, thus frightening them, or whether the horses became frightened from the report of *448blasting in the vicinity, and started, and thus pulled the whiffletree from the hands of the driver.

This was a fair question for the jury to determine upon the evidence, and their finding cannot be disturbed.

It was a pure question of fact depending upon the credibility of the witnesses. We must assume from the verdict that the cause of the horses funning away was the result ■of the driver’s letting the whiffletree fall upon the heels of the horses, and that in so doing he was negligent.

There being no question of contributory negligence upon the part of the plaintiff,- it only remains to see if any error prejudicial to the defendant was committed upon the trial.

No exception to the admission or rejection of evidence seems to have been well taken. It was certainly competent to show the business and earning of the plaintiff, in order to properly estimate the damages, for loss of time. It was certainly as competent to show that plaintiff had been engaged for the cases of midwifery and the prices therefor, as to show she was engaged in any other employment, at a stipulated compensation. Other exceptions relate to the condition of the plaintiff after the accident, and as to the extent and severity of the injury.

We having examined all the exceptions and find none sufficient to warrant a setting aside of the verdict. Neither can we say, in view of the proofs, that the' damages are excessive.

The judgment must therefore be affirmed, with costs.

All concur.