#### Arthur C. James, Respondent, *v.*Alexander Morten, impleaded with others, Appellant.

(Supreme Court, Appellate Term, First Department,

February, 1913.)

Negligence — automobiles — evidence of negligence — collision between automobile and horse.

Where, at the time of a collision between plaintiff’s automobile and a horse and runabout owned by defendant M, the horse was running away and there was no driver in the runabout; and it appears that before the horse ran into plaintiff’s automobile it had been involved in a collision with an automobile owned by defendant B, and plaintiff’s complaint alleged negligence on M’s part in driving and managing his horse and wagon and on B’s part in so operating his automobile as to cause said horse to run away, and on the trial M, as a witness for plaintiff, testified that B’s automobile ran into his wagon, that the impact threw him out and that then his horse ran away, and the wife of B who was riding in his automobile at the time testified that it passed M’s horse and wagon and shortly after .she felt a blow in the rear of the automobile and then saw M thrown from the wagon and the horse run away; and the evidence for defendant presented no other issue, a charge to the jury, that the fact that the horse was running away without a driver was some evidence of negligence, was erroneous, as the presumption of negligence was completely met by the undisputed testimony of M and the wife of B.

Appeal by the defendant Morten from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, entered upon a verdict rendered in favor of the plaintiff in an action for negligence causing damage to plaintiff’s automobile.

Hoadly, Lauterbach & Johnson (Alfred H. Townley, of counsel), for appellant.

Bertrand L. Pettigrew (Everett W. Bovard, of counsel), for respondent.

Lehman, J.

The plaintiff’s automobile was damaged by collision with a horse and runabout owned by the defendant *256Morten. The record shows' without dispute that the collision occurred through no negligence of the plaintiff. It also shows without dispute that at the time of the collision Morten’s horse was running away and that there was no driver ■ in the runabout. It further appears that before the horse ran into plaintiff’s automobile it had been involved in a collision with another automobile owned by defendant Breed. Plaintiff in his complaint alleged negligence on the part of Morten in driving and managing the horse and wagon, and on the part of the defendant Breed in managing and operating the automobile, in running into and colliding with said horse and wagon, and causing the said horse to run away. At the trial the plaintiff called both Morten and Mrs. Breed, who was riding in the automobile at the time of the collision, as his witnesses, and the case really developed into a question as to the responsibility for the collision between Morten’s horse and wagon and Breed’s automobile, it being apparently assumed that that collision was the cause of the runaway and hence of the damage to plaintiff’s car. Morten testified that Breed’s automobile ran into his wagon; that the impact threw him out and that the horse then ran away. Mrs. Breed testified that the automobile passed Morten’s horse and wagon and shortly thereafter she felt a blow on the rear of the car and then saw Morten thrown from the wagon and the horse run away. The defendants presented some evidence in their own behalf, but this evidence introduces no issue other than the issues presented by the testimony of the witnesses Morten and Mrs. Breed produced by the plaintiff. If the jury believed Morten, they could find that Breed’s automobile collided with his horse and wagon through the negligence of Breed’s chauffeur; if they believed Mrs. Breed, they were bound to find that the collision was not due to any negligence on the part of her chaxiffeur; but in the latter case they were by no means' bound to find that it occurred through the negligence of Morten, for it might well be that his horse had become unmanageable before-the collision and not as a result of the collision. The theory of the plaintiff and of the trial justice in submitting the case to the jury was that the plaintiff’s testimony made out a *257
      *prima facie*case of negligence against Morten by showing that at the time of the injury the horse was unattended; that'this *prima facie*case could be met only by proof that at the time the horse ran away it was attended; that if the jury believed Morten, then they were bound to hold that the horse was not unattended at the time it ran away, but believing Morten’s testimony they were also bound to find that Breed’s chauffeur was negligent; on the other hand, if they believed Mrs. Breed, then they were bound to discredit Morten’s testimony, and if Morten’s testimony that he was driving the horse until he was thrown out by the impact from Breed’s machine is disregarded, then the original inference of negligence by reason of the horse being unattended at the time it ran into plaintiff’s automobile still holds good. In accordance with this theory the trial justice charged at plaintiff’s request that the fact of the horse running away without the driver is some evidence of negligence on the part of the defendants. The difficulty with this charge is that any possible presumption of negligence from the fact that the horse was running away without a driver is completely met by the undisputed proof that at the time the horse started to run away the driver was in the wagon and was thrown out. Upon this point Morten and Mrs. Breed, both witnesses produced by the plaintiff, are absolutely agreed and no jury could be permitted to disregard this evidence.

Judgment must, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

Seabury and Page, J. J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.