#### Independent Ice Cream Company, Plaintiff-Respondent, *v.*United Ice Cream Company, Defendant-Appellant.

(Supreme Court, Appellate Term,

December, 1910.)

Negligence — Contributory negligence — Negligence of person injured as proximate cause of injury in general — Leaving horses unhitched.

Although to leave a team of horses unhitched and unattended in a city street may be held to be negligence *per se,*yet, where the horses run away in consequence of being run into by defendant’s wagon through the negligence of the latter and axe injured, the plaintiff’s negligence not being the proximate cause of the injury does not constitute contributory negligence which will defeat his recovery of the damages he has sustained.

Page, J., dissents.

Appeal by the defendant from a judgment in favor of the plaintiff, entered in the Municipal Court of the city of Hew York, borough of Manhattan, eighth district, upon a trial by the court without a jury.

Croshy & Fine, for appellant.

Harold S. Fleischer, for respondent.

Bijur, J.

Plaintiff recovered for damage to its team, wagon and contents, resulting from a collision with a lamppost after the team had run away. Its horses had been standing unhitched and unattended on a city street, when defendant’s wagon ran into them and started them on this runaway.

Apart from a claim that the judgment is against the weight of evidence, with which we do not agree, appellant’s only coutention is that plaintiff was guilty of contributory negligence.

The authorities are numerous and conclusive to the effect that to leave a horse unhitched and unattended in a city street may *per se*be held to be negligence; hut, in the case at-bar, the negligence of the plaintiff, if any, in this regard, *624was not the proximate cause of the damage. The distinction is aptly and clearly stated in Trapp v. McClellan, 68 App. Div. 362, 367, where a member of the city fire department was injured on the municipal fireboat *Beth Low*through becoming entangled in hawsers which, it was intimated, had been negligently attached to the boat by the defendant. The learned court pointed out that, while these ropes, even if negligently strung, were the *causa sine qua*non, the negligence of the plaintiff, himself, in directing that his boat be started before the ropes were thrown off was the *causa*causans, and that this defeated his recovery. In other words — and to state it generally — where the negligence of the one party is merely passive and potential, while the negligence of the other is the moving and effective cause of the damage, it is the latter which is the proximate cause and which fixes the liability.

In the case at bar, it is evident that, while the negligence of the plaintiff contributed to the accident in the sense that without it it is possible that the accident might never have occurred, it is equally true that his horses might have remained standing quietly for hours unhitched and unattended. It was the defendant’s negligence alone that constituted the moving, effective and proximate cause of the injury. See Austin v. N. J. Steamboat Co., *43 N.*Y. 75; Connolly v. Knickerbocker Ice Co., 114 id. 104, 108; Rider v. Syracuse R. T. R. Co., 171 id. 139 (where the subject is fully discussed) ; and Gray v. Weir, 113 App. Div. 479.

The judgment is affirmed, with costs.

Seabubv, J., concurs.

Page, J".

(dissenting). It-seems to me that the negligence of the plaintiff in leaving its horses unhitched and unattended in a public city street was a proximate cause, in that it contributed, concurrently with defendant’s negligence, to the accident.

Judgment affirmed.