#### Theodore F. Tompkins, Appellant, *v.*Howard P. Barnes, Respondent.

Second Department,

June 29, 1911.

Negligence — Highway;—collision of horse and automobile.

Where in an action to recover for damages to an automobile it appears that plaintiff while driving his car along the left-hand side of a country road, saw a horseman coming rapidly toward him who was also on the wrong side of the road and turned his car so as to go to the right, and in so doing swung across the path of the horseman, who ran into him, the negligence of the horseman is established; but a judgment entered on a verdict.in defendant’s favor will not be reversed, for there was sufficient evidence of contributory negligence on .the part of the plaintiff to sustain the verdict. .

Hirschberu, J., dissented.

Appeal by the plaintiff, Theodore F. Tompkins, from a judgment of the County Court of Westchester county in favor of the .defendant, entered in the office of the clerk of said county on the 8th day of March, 1910, upon the verdict of a *638jury, and also from an order entered in said clerk’s office on the 6th day of April, 1910, denying the plaintiff’s motion for a hew trial made upon the minutes.

*James Dempsey,*for the appellant. .

*Eugene F. McKinley,*for the respondent.

Woodward, J.:

The plaintiff brought, an action in Justice’s Court in the town of Yorktown, Westchester .county, to recover damages alleged to have been sustained by his Pope-Toledo automobile by reason of a collision- with a horse being ridden by the defendant. The action resulted in a judgment in favor of the plaintiff for $125.' Subsequently the defendant appealed to the County Court, where a new trial was had before a jury, and this trial resulted in a verdict of no cause of action, on which judgment was entered, dismissing plaintiff’s complaint, with costs. The plaintiff appeals to this court from the judgment and from an order denying his motion for a new trial.

The facts, as they appear from the evidence, indicate that the plaintiff, with his son, started in an automobile along a highway in the town of Yorktown; that they had proceeded but a short distance when the defendant appeared mounted upon a mustang pony which was running along the westerly side of the highway, which was on his left hand, coming toward the plaintiff; that at this time the plaintiff was upon the easterly side of the center of the road, which was on his left hand, driving toward the defendant, so that each of them was on the wrong side of the highway. The defendant was some two or three hundred feet away at the time the- plaintiff discovered him, and the plaintiff insists that he turned his car to the right and ran it over to the extreme right-hand side of the highway, where the defendant’s horse came into collision with .the fender and threw the defendant into the automobile, the horse landing on top of the radiator and doing damages to to the extent of two or three hundred dollars. Upon this appeal the plaintiff urges that the defendant’s negligence was established, and that the verdict of the jury is against the weight of evidence, and we are inclined to agree with him *639-upon this point. On the question of contributory negligence, however, the plaintiff is silent, and as absence of contributory negligence is" as much a part of the cause of action as the negligence of the defendant, we are unable to acquiesce in the proposition that the judgment should be reversed. The evi-deuce clearly shows that the plaintiff was on the westerly side of the highway, upon his left hand, when the defendant came into view, the latter upon the easterly side of the highway, on his left hand, as he approached. There was no presumption that the horse would change his course, and the plaintiff was not in danger to remain on his left-hand side of the street as he was going. Instead of keeping to his course, he testifies that he crossed over to his right-hand side of the street, directly in the path of the oncoming horse, and the situation thus presented the question for the jury whether this was exercising that reasonable degree of care which the law demands as a condition of recoveiy. The jury has found that the plaintiff is is not entitled to recover, and it may well be that, in considering the evidence, they reached the conclusion that the plaintiff, although generally speaking he is entitled to be upon the right-hand side of the highway, was not called upon, in.the exercise of reasonable care, to get to the right-hand side of the road in the face of this horse, which, according to the testimony, was being ridden recklessly along the highway. The plaintiff, after seeing the horse, left a place of safety and ran into the course of the horse, and it was for the jury to "determine whether this was prudent or not under all of the circumstances.

The judgment and order appealed from should be affirmed, with costs.

Jenks, P. J., Buee and Rich, JJ., concurred; Hieschbeeg, J., dissented.

Judgment and order of the County Court of Westchester county affirmed, with costs.