#### CROZIER v. READ.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Negligence—Evidence.

In an action for personal injuries, caused by a collision with defendant’s horses while in charge of defendant’s servant, plaintiff testified that when she first saw the horses they were prancing about, so that she was *915frightened, and drove as far to the right of the road as she could; that defendant’s servant did not turn out of the road, or attempt to stop them; and that, when near plaintiff’s vehicle, he jerked the halter of one of the horses, causing it to swerve against plaintiff’s wagon, whereby she was thrown out. *Held,*that the question as to whether defendant’s servant was negligent should have been submitted to the jury.

Appeal from circuit court, Westchester county.

Action by Sophia Crozier against George R. Read for personal injuries. Judgment was entered on a verdict directed by the court in favor of defendant, and plaintiff appeals. Reversed.

Argued before BROWN, P. J., and PRATT, J.

Frederick W. Sherman, for appellant.

Maurice Dillon (Martin J. Keogh, of counsel), for respondent.

PRATT, J.

This is an appeal from a judgment in favor of the defendant, entered upon a verdict rendered by direction of the court at the close of the trial, notwithstanding plaintiff’s request to go to the jury. The action was brought by the plaintiff to recover damages for severe and permanent injuries caused by her being thrown from her wagon, by a collision with one of the defendant’s horses. She testified that, as she was driving with her infant daughter in Port Chester, she saw a pair of defendant’s horses, in charge of a boy (plaintiff’s servant, McCarthy), coming towards her. The boy was riding one horse bareback and leading the other by a halter. The, horses ,were, from the time plaintiff first saw them in the distance, prancing and plunging about, so that she was frightened. She turned far out to the right,—so far that there was more than enough room for a two-horse team and large wagon to pass, and still leave room on either side thereof. The boy, instead of turning out of the traveled road, or of stopping or attempting to stop the horses,- took them sufficiently near to cause the accident, and then, when just abreast of her, jerked or pulled upon the halter of the led horse, causing the latter to swerve across the road, and back into plaintiff’s wagon, thereby arresting its progress with such suddenness as to throw her and her child out of the wagon. She fell upon the stone roadway, and injured her back, arm, shoulder, and legs. A conflict arises between the testimony of the four witnesses—two on each side—as to whether or not the defendant’s horses were misbehaving before, the collision to such an extent as to have made it negligent to take them near the plaintiff’s- wagon. We think, under the testimony as it stood at the-close of. the trial, it presented a proper question to be submitted to a jury. The testimony on the part of the plaintiff might well justify the inference that the collision could have been avoided by the exercise of proper care on the part of defendant’s servant. If, as claimed by the plaintiff, the horses, just previous to the accident, had become in a degree unmanageable, and were cavorting fr.om one side of the street to the other, a jury might well infer it was the duty of the servant to either turn the horses out of the road, or dismount and hold them Ijy the heads until the plaintiff had safely passed. A party pan be charged with negligence for omitting to take a precaution which a reasonable man would *916have taken to prevent injury, as for a positive negligent act which results in damage. Again, a jury might have found it was negligent, under the circumstances, to jerk the horses’ heads just as the horses were about to pass the plaintiff. A sudden and violent jerk has a tendency, as everybody knows, to malte a horse settle back; and, his head being turned from the wagon, instead of towards it, the tendency would naturally be for him to back against the wagon. The jury might have thought that the boy negligently and unsltillfully managed the horses at the instant of or just before the collision. If the horses’ heads had been towards the wagon, there would have been no collision, but the horses would have backed away, which is a conclusion that follows from the well-known disposition and habits of a horse not to run against any obstacle. At all events, it presents a case where 12 honest men might differ in their inferences as to the negligence of the defendant, and, if they found in favor of the plaintiff, it could not be said the verdict had no support in the evidence. It therefore appeared that the plaintiff was without fault. Judgment reversed, and new trial granted; costs to abide the event.