This case is so fully considered in the opinion of RUMSEY, J., on the motion for a new trial, in which we concur, that we deem it necessary only to refer to the exception to the concluding sentence of the charge, on which special stress has been laid by the appellant on the argument in this court. The judge charged in regard to the viciousness of the horse, that it was incumbent upon the plaintiff to show by a preponderance of evidence, that the horse was not vicious. This charge if standing alone would be subject to criticism, and if the judge had instructed the jury that the failure of the plaintiff to prove that the horse was not vicious, would of itself entitle the defendant to a *Page 483 verdict, it would have been erroneous. But taking the whole charge, in connection with the evidence, the jury could not have so understood the judge. He had distinctly charged them, that if the damage was occasioned by a defect in the horse or in the harness, and would not have occurred if those defects had not existed, then the defendant was not responsible. Also that if the defendant or his servants were to some extent guilty of negligence, yet if the defect or default of the property did in fact exist, and but for such defect or fault in the property the damage would not have resulted, the plaintiff could not recover.
The jury were thus distinctly instructed that to constitute a defense it was not enough to show that the horse was vicious, but that to exempt the defendant from responsibility the damage must have been caused or contributed to by that circumstance. In the portion of the charge excepted to, there is nothing which withdraws or conflicts with this instruction.
The sentence excepted to relates wholly to the burden of proof on the question of the viciousness of the horse, and not to the sufficiency of that fact alone to constitute a defense. In this aspect it must be construed with reference to the state of the evidence. If there had been no evidence in the case to show that the horse was vicious, the charge might be subject to the criticisms made. But that question was one of the issues in the case, upon which evidence had been adduced on both sides. The burden of proof on the whole case was with the plaintiff, and it was incumbent upon him to satisfy the jury by a preponderance of proof that the injury had been occasioned by the negligence of the defendant's intestate alone, and that he himself was free from fault. In cases where contributory negligence may be claimed, it is settled in this court that the absence of contributory negligence is part of the plaintiff's case, and the burden of satisfying the jury on that point rests upon him. (Reynolds v. N.Y. Cent. R.R. Co., 58 N.Y., 248; Gaynor v.Old Col. R.R., 100 Mass., 208; Murphy v. Deane, 101 id., 466; *Page 484 Park v. O'Brien, 23 Conn., 339.) The character of the horse was the main fact upon which the question of contributory negligence depended, and having been assailed by evidence the burden rested upon the plaintiff to sustain it, or to show that it did not contribute to the damage. (Button v. Hudson R.R.,18 N.Y., 248.) If the evidence left the jury in doubt whether the injury was occasioned by the fault of defendant's intestate alone, or was caused or contributed to by the viciousness of the horse, the defendant was entitled to the benefit of that doubt, and the plaintiff had failed to make out his case. This is only stating in another form the proposition that the plaintiff was bound to prove the controverted facts by a preponderance of testimony.
The judgment should be affirmed.
All concur.
Judgment affirmed.