#### Elizabeth Unger, plaintiff and appellant, *vs.*The Forty-Second Street and Grand Street Ferry Railroad Company, defendants and respondents.

1. Although driving through the street a pair of horses, without their being attached to any vehicle, is not necessarily negligence, and they are usually attached to a vehicle for the purpose of drawing it, and not to prevent them from running away, yet this does not absolve one who attaches horses to a vehicle and drives them in the public street from all duty to the public, in respect of such attachment. On the contrary, he is bound to exercise all the care, caution and foresight, in making the attachment, which a careful and prudent man would exercise, in order to provide against the horses being alarmed by the breakage of any fastening.

2. Under that rule, any one so attaching horses would be bound to see that they are so attached, as that the ordinary use of the vehicle, (considering the dispositions of the horses attached,) would not, through any patent defect or inadequacy of the attachment itself, irritate the horses and cause them to become unmanageable, run away and produce injury.

3. In an action against a railroad company, to recover damages for injuries to the plaintiff, caused by a pair of horses belonging to the defendants, which had got detached from one of their cars, running away and knocking down and running over the plaintiff, through the alleged negligence of the defendants and their servants, the question is, not whether" a particular attachment, (if used,) would have prevented the accident, but whether the attachment actually used was without apparent defect, and adequate, in the ordinary employment of the vehicle, (considering the dispositions of the horses used,) to prevent it from pressing on their haunches, and the whiffletree by getting loose, from falling about their heels and legs, and thereby frightening and rendering them unmanageable.

*2384. Hence it is erroneous, in such an action to permit the plaintiff to show a witness a plan of fastening horses to a railroad car with a pin, and ask him . whether if, in the particular case, the whiffletree or pole had been fastened in that manner, the horses could have broken loose from the car.

5. Although after such testimony has been admitted, the judge charge the jury to consider *all*.the testimony as to the character of the attachment, and say if it was such as a careful and prudent person would employ; and that if, on *all*the testimony, they came to the conclusion that there was negligence on the part of the defendants, and the plaintiff was injured without any contributing negligence on her part, then to find a verdict for the plaintiff, and the jury found a verdict accordingly, a new trial will be granted.

6. A city railroad company is not bound to' adopt a particular method of attaching horses to the cars, for the purpose of meeting an unforeseen, unanticipated, extraordinary occurrence.

(Before Robertson, Ch. J., and McCunn and Jones, JJ.)

Heard June 9, 1868;

decided July 3, 1868.

Appeal by the plaintiff from an order granting a new trial. The action was brought to recover damages for personal injuries sustained by the plaintiff on the evening of January 1, 1864, in consequence of having been run over by a pair of the defendants’ horses. At the time of the accident the defendants operated a horse railroad in the city of Eew York. The right of recovery was based on the defendants’ supposed negligence in the management of their railway, or of one of their railroad cars, and the horses and gear thereof, so that by want of proper- care and conduct on their part, said horses broke away from the ear to which they had been attached, and running furiously against the plaintiff, caused the injury complained of. There was no conflict of proof as to the nature or extent of the injury, or what occasioned it. The proof for the plaintiff showed that on Eew Year’s night, 1864, an extremely cold night, and very windy, as the horses in question were on their uptown trip, going north through Avenue A, attached to one of the defendants’ cars, and in charge of one of their drivers, at about Third street, they suddenly became detached from the car, and escaping, turned eastwardly, down Third street, and at the intersection of Avenue B and that street, ran over the plaintiff and her mother, who were then in the act of crossing the street, in their progress along Avenue B. *239The occurrence was at about six or seven o’clock, after dark. The gás was lighted in the street lamps, placed at regular and customary intervals; one lamp being on one corner of Third street and Avenue B, and one on the corner diagonally opposite. The plaintiff also proved by a witness that the horses were attached to the car by an upstanding straight hook, which *“appeared*to have been broken off sometime,” and that the horses afterwards attached to the same car, (to continue the upward trip,) got loose from it, as the car turned from Twenty-third street into Broadway. Between the horses were the ordinary pole, to the end of which were iron wiffletrees which rested on the hook. , This was all the evidence the plaintiff adduced of negligence. Upon her resting, the defendants moved for a dismissal of the complaint, on the ground that she had failed to show that the accident was occasioned by any negligence or fault of the defendants. The motion was denied, and the defendants excepted. The defendants then introduced the testimony of their driver, and of a policeman who was passing on his beat, at the time, that the former was in -charge of the horses, driving along on the usual route in the usual manner, when suddenly two drunken men attacked them; one seized the horses, by the head, struck them, backed them against the dashboard, and frightened them so that they kicked, and by some means disengaged the whiffletrees from the hook that attached them to the cai’s; at the same moment the other man seized the reins and pulled one of them from the driver’s hand, whereupon the horses, starting suddenly, were turned, by the remaining rein, down Third street; in their progress they drew that also out of his hands, and so escaped entirely free. The horses had bells on them ; the whiffletrees were very heavy, and of iron; in running down the street, the former could be seen for seventy to eighty yards ahead; there was no snow on the ground, and the clatter of the iron whiffletrees on the stone pavement made a great noise. The plaintiff proved, by her first witness, that the whiffle*240trees, as they were dragged along, struck fire. Mr. Stevenson, a car and omnibus builder of thirty-six years’ experience, who built the defendants’ cars, testified that he put on them the most perfect form of hook he was acquainted with, and the same style he put on for other roads. He also gave it as his and the general opinion that the hook was the safest attachment. He also testified that those hooks are bent or curved out, where the eye of the whiffietree rests, so that, even if broken off above the middle bend, its safety would not be affected. George Terry, (a witness for defendants,) substantially corroborated the testimony of Mr. Stevenson, in respect of the character of coupling used on the defendants’ cars. The defendants’ counsel asked one of his witnesses, if he knew how horses were attached to other railroad cars. This question was objected to by the plaintiff. The objection was sustained, and the defendants excepted. He also offered to show that the attachment in use on the- car in question *at the time of the accident,*was the same in construction, form and size, and every other respect, as had been used for a long time before on other city railroad cars, and was then in universal use. To the proof so offered the plaintiff objected. The objection was sustained,, and the defendants excepted. The plaintiff’s counsel showed to a witness, a drawing representing a méans of fastening by a pin, and asked whether, if the pole or whiffletree had been attached to the car as so represented, the horses could have got loose? To this question the defendants objected. The objection was overruled, and the defendants excepted. The witness answered, “they could not.” Subsequently, the counsel for the defendants asked another witness, what had been the experience in the use of pins, where the pole and pin had been used ? How it operated in reference to security ? This question was objected to by the plaintiff. The objection was sustained, and the defendants excepted. The counsel for the defendants asked, (the' superintendent of the Third Avenue Railroad Company,) another witness, whether he was acquainted *241with the style of coupling used on other railroads? To this question the plaintiff objected. The objection was sustained, and the defendants excepted.

At the close of the proofs so given, the defendants repeated their motion for a dismissal of the complaint on the grounds :

1st. That the evidence showed contributive negligence on the part of the plaintiff.

2d. That so far as the defendants were concerned, the occurrence was shown to have been accidental, and not by reason of any negligence or fault of theirs.

3d. That the wrong consisted in setting the horses free, which was the overpowering act of strangers, whose instruments alone the horses were in doing the damage

The motion was denied, and the defendants excepted.

At the request of the defendants’ counsel the court in charging the jury, charged the following propositions of law, to wit:

1st. Whatever- may have been the negligence of the defendants, the plaintiff cannot recover if by the exercise of ordinary caution on her part the collision might have been avoided.

2d. The burden of proving to the satisfaction of the jury, that she did exercise such caution is on the *plaintiff,*and unless they are satisfied from the proofs that she did so, the verdict must be for the defendants.

3d. If the jury are satisfied from the circumstances of the case, that by looking in the direction from whence the horses came, before stepping from the sidewalk, the plaintiff could have seen the horses approaching, and so have avoided the collision by remaining on the sidewalk, the verdict must be for the defendants.

4th. Railroad companies are not insurers, even of passengers on their *cars,*and are not liable for injuries to *passengers,*unless shown to have been guilty of, negligence; but while they owe *passengers*the utmost skill and vigilance in the equipment and management of their road, in order to avoid accidents, they owe others only the exercise of *242ordinary care, being that degree of vigilance which a prudent man exercises about his own affairs.

5th. If the jury believe that the defendants’ horses being in actual charge of the driver of the car, were set loose by the ■ lines being drawn from the driver’s hand by the sudden and unexpected attack of a *stranger,*or that but for such attack the accident would not have happened, the verdict must be for the defendants.

6th. The rules of lay governing this case' are the same precisely as are applicable to the case of a private individual in charge of his own horses; and no negligence is to be imputed to a person from the mere fact of his having his ' horses attached to a vehicle in such manner as that they may easily become or be detached.

7th. To entitle the plaintiff to recover, she must show fault on the part of the defendants, and such fault will not .be inferred in this case merely from the injuiy.

8th. The jury may take into consideration the fact that the horses were attached to the car in the same manner that other horses had been attached to the cars of the defendants, ever since they had been operating their road, and in the same manner, that for a long period before it had been and then was, the custom of other railroad companies to attach their horses to their cars, without giving rise to. accidents.

9th. The jury are also_to consider the fact that the horses , are not attached to the car as a means of holding them, and preventing their *escape,*but as a means only of bringing their power to bear on the car for the purpose of its propulsion; and negligence could not be imputed to. a person from the mere fact of his sending his horses through the street, unattached to any vehicle whatever, so long as they were so sent in charge of a person of ordinary prudence, experience, and capacity, in control of the ordinary appliances,'by means of halter, bridle, harness, and lines, &c. to restrain them.

*24310th. No fault is to be imputed to the defendants in this case by reason of failure of the driver to fasten the lines to the car.

The judge further charged the jury as follows: That the only question of fact for them to determine was, whether there was negligence on the part of the defendants, the Forty-second street and Grand Street Ferry Railroad Company, or their servants, in allowing the horses attached to their car to escape, and thereby cause the injury complained of by the plaintiff. They should consider all the testimony as to the character of the attachment used, and say if it was such as careful and prudent persons would employ. They had heard the evidence of the several witnesses on this subject. If, on all the testimony, they came to the conclusion that there was negligence on the part of the defendants, and the plaintiff was injured without any negligence on her part that contributed to the injury, they should give the plaintiff a verdict allowing her such damages as from the testimony they considered proper, for the pain and suffering she endured. Inasmuch as she was a minor, they could not allow for physician’s services in a suit brought by her.

The jury found a verdict for the plaintiff for five thousand dollars. On motion of the defendants this verdict was subsequently set aside, and a new trial granted. From the order granting such new trial, &c. the plaintiff now appeals.

*D. C. Birdsall,*for the plaintiff and appellant.

I. All the rulings of the court upon the testimony introduced by the plaintiff were in favor of the defendants.

• II. The defendants’ exceptions to the ruling of the court if erroneous, (which the appellant does not concede,) must fail for the reason that the plaintiff offered testimony touching the same identical subject, which was objected to by the defendants’ counsel, and ruled out by the court. The *244defendants must *be bound by the*action of their counsel in this respect.

III. If this ruling was incorrect, the plaintiff was the only party damaged thereby, she having no testimony on that point, while the evidence of the defendants’ witness, (Stevenson,) is wholly upon this question, the defendants deriving all the benefits of it before the jury.

IV. The only other objection taken by the defendants was to the testimony on the cross-examination of Bretz, (the driver of the horses that did the injury.) His testimony showed that the horses could not have become detached from the car if they had been fastened with a pin coupling. This was clearly proper, to show that the manner of fastening was not the safest.

V. The judge, in his charge, ruled upon every question, as requested by the defendants’ counsel, and left the whole question of fact for the consideration of the jury.

VI. The court was clearly right in denying the defendants’ motion for a nonsuit, as each of their four propositions was upon questions of fact alone, which the jury have the right to determine. *(See Ernst*v. *The Hudson River R. R. Co.,*32 *How. Pr.*73, *and cases there cited.)*

VII. All the questions of fact having been properly left by the court for the consideration of the jury, their findings (after mature deliberation) should be considered conclusive.

1. They were the proper judges to determine whether or not the plaintiff used due diligence in crossing the street. They, by their verdict, have answered this question in the affirmative. They have also affirmed the plaintiff’s theory that the defendants and their agents did not use proper precautions in attaching their horses to the car to prevent an accident of this nature, both in the coupling and in fastening the reins to the car.

2. They were also the judges of the probability of the statement of the defendants’ driver, and of the policeman, Smith, who swears that he saw two men pull the reins out of the driver’s hand, and was within two hundred feet of *245them, and yet made no effort to arrest them. And, by their verdict, it must be assumed that they did not believe the story told by Smith, the policeman, and Bretz, the driver of the car.

3. If, however, the jury *did*give any credit to the story told by these two witnesses, they were justified in finding a verdict for the plaintiff, on the ground that if proper precaution had been observed in attaching the horses to the car, they could not have detached themselves therefrom, as they did.

In the case of *Wakeman*v. Robinson, (1 *Bing.*213,) it was decided that if any one drive a horse too spirited, or pull the wrong rein, *or use imperfect*harness, and, the horse taking fright, kills another horse, the defendant is liable, although he is innocent of any intention to injure. It is submitted that it makes no difference whether the accident arise from imperfect harness or imperfect, fastening, if it be insufficient for the purposes intended. •

4. The jury having decided all these questions in the plaintiff’s favor, and also the question as to what was a reasonable compensation for the plaintiff’s injuries, their verdict should be sustained and affirmed by the court.

The order granting'a new trial should be set aside, and the judgment of the court below, and the verdict of the jury, should be affirmed.

*Moses Ely,*for the defendants, respondents.

I. The first motion for a nonsuit should have been granted. The plaintiff’s proofs did not justify the inference that her injuries were the result of the defendants’ negligence.* Conceding that the naked fact of one’s horses being ■ found unattended and unrestrained in the public streets would, justify the presumption that the owner had been negligent, that presumption would be defeated if it should be shown (as in this case) that immediately before they were so at large they were in charge of the owner, attached to his vehicle which he was driving through the streets, and more *246particularly (as also in this case) that they were so in charge and so attached up to the moment of their escape. The latter facts having been established by the party asserting negligence, she should have shown affirmatively that the horses got away through some fault of .the defendants. *(Terry*v. *N. Y. Central Railroad Co.,*22 *Barb.*586. *Deyo*v. *Same,*34 *N. Y. Rep.*14, 15. *Beers*v. *Woodruff,*30 *Conn. Rep.*308. *Compare Johnson*v. *Hudson River Railroad Co.,*20 *N. Y. Rep.*65.)

H. Railroad companies are not insurers, even of passengers on their cars, and are not liable for injuries to *them,*unless shown to have been guilty of negligence. But while they owe passengers, the utmost skill and vigilance in the equipment and management of their road, in order to avoid accidents, they owe others only the exercise of ordinary care, being that degree of vigilance which a -prudent man exercises about his own affairs. *(C. and Amboy Railroad*v. *Burke,*13 *Wend.*611. *Kelsey*v. *Barney, 2 Kern.*429. *Hegeman*v. *Western Railroad Co.,*3 *id.*17, 19, 26.)

HI. The evidence that the hook was defective, or in any way insufficient, was vague and unreliable. It was also immaterial. The hook was entirely for the accommodation of the defendants, and to enable them to apply the power of the .horses to the propulsion of the car. So long as the horses were in charge of the driver, the defendants owed the plaintiff no obligation to have them attached to ■ any vehicle, whether securely or otherwise.

VT. The motion for dismissal of the complaint made at the close of all the proofs, should have been granted. The uncontradicted proofs of the defendants had established the fact that the setting the horses free was the overpowering act of strangers, who had forcibly taken them from the control of the defendants; and thenceforth, and until after the accident, the horses were the instruments of those strangers, who alone' were responsible for the consequences of their acts.

V. In view of all the proofs as to the plaintiff’s position and surroundings immediately preceding the accident, ¿nd *247of the horse’s approach along the lighted street, with bells attached, dragging the heavy iron whifiietrees over the bare stone pavement, and marking their prpgress with fire from the contact, it is incredible, that had she taken the ordinary precaution of looking before she stepped from the curb, she would not have realized the impending danger which so invited her attention, in time to avert it. She was guilty of contributive negligence for failure to do so, and for that reason should have been nonsuited. *(Button*v. *Hudson River Railroad Co.,*18 *N. Y. Rep.*248.)

VI. Each of the several rulings upon the admissibility of evidence, to which exceptions were taken by the defendants, was erroneous. The defendants were prejudiced thereby, and neither error was or could have been cured by the judge’s charge. *(Penfield*v. *Carpender,*13 *John.*350. *Erben*v. *Lorillard,*19 *N. Y. Rep.*299.)

Vil. Notwithstanding the said rulings, on the trial, and the refusals of nonsuit, the propositions charged by the court at the request of the defendants’ counsel were clearly directory of a verdict for the defendants. A contrary verdict plainly indicated either a misapprehension or disregard of the charge.

V1LI. The finding of the jury upon the proofs was clearly erroneous. The verdict should have been for the defendants.

By the Court, Jones, J.

The defendant’s negligence is claimed to consist of two things—not having the horses properly attached to the car, and not having the reins fastened together at the end.

It may be conceded that there is, ordinarily, no.negligence in driving a pair of horses through the street without being attached to a vehicle, and also that horses are attached to a vehicle for the purpose of drawing it, and not to prevent them from running away; but this does not absolve one who attaches horses to a vehicle and drives them in the public street from all duty to the public, in respect of sneh attachment. On the contrary he is bound to exercise that *248care, caution and foresight in making the attachment which a careful and prudent man would exercise with the view of providing against the horses being frightened by any breakage. Under this rule he would owe it to the public to see that the horses are so attached as that in the ordinary use of the vehicle, considering the dispositions of the horses attached, it would not, through any patent defect or inadequacy in the attachment itself, irritate the horses and cause them to become unmanageable, run away and produce injury.

To illustrate my meaning. Take a single horse and wagon. If the back straps, thills, or either have patent defects or are not adequate to the ordinary use of the wagon, and by means thereof either of them breaks and hits the wagon or the haunches of the horse; or if the bolt which attaches the whiffletrees to the wagon, for similar reasons breaks, letting the whiffletree fall on the heels of the horses ; or the whiffletree itself for similar reasons breaks, letting the pieces fall dangling about the horse; and the horse, in either of these cases becomes frightened and runs away, doing injury, the owner would be liable for that injury. The same result would follow if the horse, being frightened by a stranger, and whipped or frightened, yet not being unmanageable, breaks such defective back straps, thills, bolt or whiffltree and is thereby rendered unmanageble and causes an injury. For in that case his unmanageableness is attributed not t'o the original fright, but to a fright caused by such defect or inadequacy. If, however, the horse, on being frightened by a stranger, *thereby*becomes unmanageable and gets away and does injury, the owner is not liable, even though it may be afterwards discovered that there was some apparent defect or inadequacy in the attachment of the horse to the wagon; since in such case it is evident that the defect or inadequacy did not contribute to the unmanageableness.

It may often be a difficult matter to determine what has caused the unmanageableness of a horse, but if any part *249of the attachment should be thus defective or inadequate, and should have been broken, that defect or inadequacy will be deemed to have contributed to. the unmanageableness, unless it is clearly apparent that it could not.

I But, on the other hand, if the back straps, thills, bolt or whiffletree are, neither apparently defective nor inadequate to the ordinary use of a vehicle, then, although a horse may, in consequence of some fright, break them and get away, the owner cannot be made liable, even though such breakage contribute to render him unmanageable, on the ground that if they had been stronger, the horse would not have broken them. For the owner is only bound to have attachments without -patent defects, and adequate to the ordinary use of his vehicle and the disposition of-the horse he uses. He is not bound, as the carrier of passengers is, to use all the means which human skill, ságacity or foresight can suggest to guard against accidents.

One of the theories on which this case was tried was, that there was another kind of attachment which, if it had been employed, the horses could not have kicked loose, and that there was negligence in not using it. Thus we have the question asked by the plaintiff’s counsel, “ Look at this plan of fastening horses to a railroad car with a pin, and say if the whiffletree or pole had been fastened in that manner could they have broken loose from the car?” The question was objected to as irrelevant, the objection was overruled, and an exception taken. The witness answered, *“*They could not.” *We*cannot say but that it may have been on this testimony, alone, that the jury found the defendants to have been negligent. If then, it was improperly admitted, there should be a new trial.

Under the above principles, the evidence was improper. The defendants were not bound to adopt a particular attachment for the purpose of meeting an unforeseen, unanticipated, extraordinary occurrence. The question is not whether a particular attachment, if used, would have prevented the accident, but whether the attachment that was *250used was without apparent defect and adequate in the ordinary use of the vehicle, considering the dispositions of the horses used, to prevent it from pressing on their haunches, and the whiffletree from getting loose and falling about the horses’ heels and legs, and thereby frightening and rendering the horses unmanageable.

It is true the learned judge did not charge the jury, in terms, that if there was another attachment which would have prevented the horses from getting away, it was negligence on the part of the defendants not to have used it.. But he charged them to consider all the testimony as to the character of the attachment and say if it was such as a careful and prudent person would employ; and that if, on all the testimony, they came to the conclusion that there was negligence on the part of the defendants, and the plaintiff was injured without any contributing negligence on her part, then to find a verdict for the plaintiff.

A part of the evidence was this which was admitted under objection, viz: that there was another kind of attachment which would have prevented the horses from getting loose. What effect this may have had in leading the minds of the . jury to the conclusion that the attachment used was not such as the defendants should have used, it is impossible to say. This verdict may have been based wholly on this piece of testimony. However this may be, as we cannot say that the evidence could not possibly have affected the verdict, its admission makes a new trial necessary.

Order affirmed, with costs to the respondent.