#### BENOIT v. TROY & L. R. CO.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Negligence—Runaway Horses—Knowledge of Character.

In an action for injuries inflicted by a runaway team of defendant, the vicious or dangerous character of the horses is a question for the jury, where there is evidence that the horses had previously run away and that defendant knew it.

Action by Julia Benoit, by her guardian ad litem, against the Troy & Lansingburgh Railroad Company, for personal injuries. There was a judgment of nonsuit, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance, pursuant to Code Civ. Proc. § 1000. Granted.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

James F. Crawford (Galen R. Hitt, of counsel), for plaintiff.

R A. Parmenter, for defendant.

PER CURIAM.

Plaintiff, an infant seven years of age, was injured by a span of horses belonging to defendant, while they were running away on Ontario street, in the city of Cohoes. The complaint alleges that said span were addicted to running away, to defendant’s knowledge, and also that the sled or vehicle before which they were being driven at the time of the accident was defective, not affording sufficient means to control said horses, and hence the injury to plaintiff resulted from negligence on the part of defendant. The trial judge nonsuited the plaintiff.

The only matter for our consideration is whether, on the evidence given, the question of the defendant’s negligence should have been ^submitted to the jury. It is not denied that the owner of dangerous or vicious animals, with notice, is liable for damages done by them. Van Leuven v. Lyke, 1 N. Y. 515; Dickson v. McCoy, 39 N. Y. 400-403. Had this case been submitted to the jury, they could have found from the testimony that the team which injured the plaintiff had run away twice before the injury. If, however, it had been made to appear that the horses, before the accident, had ran away only on one occasion, of which fact it was shown that the superintendent of defendant had notice, we think a submission to the jury of the question as to the vicious or dangerous character of the horses would have been proper. Helmke v. Stetler (Sup.) 23 N. Y. Supp. 392; Kittredge v. Elliott, 16 N. H. 77; Arnold v. Norton, 25 Conn. 92. The jury, if allowed to pass on the questions of fact raised by the pleadings, therefore, would have been justified in finding that, a week before the injury to plaintiff, the same horses which caused the injury, in passing some school children “snowballing” in the street,—one of the horses being struck by a snowball,—became frightened and unmanageable, so that the driver was unable to control them; that, with knowledge *1025of this fact, defendant, on the occasion of the injury to plaintiff, allowed the same team, driven before the same sled by the same driver, to go over the same route, and by the same school, where the team was frightened as before, and again became uncontrollable and ran, away, causing the injury to plaintiff for which this action was brought. We think that the evidence was such that the case should have gone-to the jury. The jury could have properly found that a team that became frightened and uncontrollable at a very ordinary occurrence in a public street were dangerous and vicious, and that defendant, having notice of the character of the horses, was negligent in again sending said horses, with the same driver and sled, and on the same route where they were before frightened. We also think it was a question proper for the consideration of the jury whether the sled used by defendant as a vehicle before which to drive the team to the barn was a safe one for the purpose. There should be a new trial, with costs to abide the event. All concur.