(dissenting):.
The action as originally brought was based purely upon the negligence of the defendant’s driver in driving the horse aud wagon which caused the injury for which the action was brought.
The complaint alleged that on the 19th day of ■ December, 1907, while the plaintiff was lawfully upon the highway he was run into, knocked down and run over by a horse and wagon owned or operated by the defendant without any fault or negligence on his part, but solely through the fault, carelessness, recklessness and negligence of the defendant, its agent, servant or employee in charge of the same: and by reason thereof the plaintiff sustained injuries, and that the defendant, .its agent, servant and employee in charge of the said horse and wagon violated certain ordinances of the city of New York, by reason of which the plaintiff was injured.
The plaintiff sought to prove this cause of action, and at the end of the plaintiff’s case the defendant moved to dismiss the complaint on the ground that there was no evidence of negligence on the part of the defendant and. that the evidence is that the plaintiff was guilty of contributory negligence. This motion was denied, and the defendant excepted. The defendant then introduced evidence which tended to, show that the driver was not negligent, but in the course of that evidence it appeared that the horse that caused the injury had been driven for five or six days before the accident; that the driver left the wagon in the street and went into a drug store to get a prescription; that on liis way back from the drug store, to the defendant’s place of business a switchman, giving signals to a street car with a red and white lamp, caused the horse to shy at this lamp, then the horse started on a run ; that the driver was unable to control him, and while thus running away the plaintiff was run over; that this horse had never run away before, but several times had shied at cars and other obstructions in the street. There was. other evidence to show that' the horse was nervous and excitable and difficult to control. The driver had driven horses in New York about a year and a half before the accident, and on ere !s-examination the driver testified that the horse was frightened at tlk elevated trains and the trolley cars, and would shy at paper in the l\Adway. ,
At the end of all the testimony the defendant renewed his motion *378to dismiss the complaint, when the court suggested that he would permit an amendment to the cotnplaint and make it “a case of a runaway and knowledge on the part of .the owner of the horse that it was a dangerous horse.” In that the plaintiff accpiiesced, but .the defendant strenuously objected, claiming that it was an entire change of the cause of action which the defendant had not come prepared to try and was, therefore, surprised and was not prepared to meet such issue, as he had no notice that any such issue would b.e presented. The court stated that the amendment made a different cause of action altogether, whereupon the defendant again insisted that the court had no power' to allow the amendment; that lie was taken wholly by surprise and had not come prepared to meet, any such issue; but the court granted the motion to amend the complaint, to which the defendant excepted. The defendant then moved to dismiss the complaint upon the ground that the evidence was not sufficient to sustain the cause of action based upon the character of the horse. The plaintiff then elected to proceed upon the new cause of action, when the defendant moved to withdraw'a juror on the ground of surprise, which motion was denied and the defendant excepted.
I am inclined to'think that the effect of this amendment was to set up a new and entirely different cause of action based, not upon the negligence of the driver, the cause'of action alleged in the complaint, but upon an obligation imposed by law upon one keeping or harboring a vicious animal which does not depend upon negligence.
In Molloy v. Starin (191 N. Y. 21) the Court of Appeals said that the owner of a wild animal of a dangerous character, or the owner of a domestic animal known to be vicious, is absolutely liable for injuries done by such animal to another, unless the injury was brought about by liis own conduct, and this liability exists, no matter how much care was taken by the owner of the animal for the purpose of preventing the injury. •
This being the basis of the defendant’s liability, it seems to m« clear that it is a distinct cause of action from an action for the negligent use of an animal not of a vicious disposition which caused an injury, and that it was error, therefore, to allow such an amendment to be made upon the trial without giving the defendant an oppor*379tnnity of answering the new cause of action alleged and of making proper preparations to meet it on the trial. The evidence upon which this recovery is based was brought out on cross-examination of the defendant’s witnesses, and no notice had been given to the defendant that he would be required to prove the character of the horse. Assuming that there was evidence to sustain a verdict, based upon the vicious character of the horse, the defendant has -never had an opportunity to meet that issue. If such a cause of action was alleged by an amendment allowed upon the trial, the defendant had certainly a right to interpose an answer to it. It was given no such opportunity, but the case was submitted to the jury upon a question which was not involved upon the pleadings when the evidence was given and the defendant had no opportunity of procuring evidence to meet the plaintiffs substituted claim.
It seems to me that it is a gross injustice to thus change the basis oij recovery without allowing the defendant to answer the amended c/'/nplaint and meet the new issue framed by the amendment. I Fyio think the evidence insufficient to sustain a verdict upon the /, ,ew cause of action which was allowed to be set up by this arnend- } dent. The injury was caused by the horse running away, not by ///iis nervous action or his shying at the elevated railroad or the sur.face cars. The evidence is undisputed that this was the first time j J that the horse had run away since he had been in'possession of (/ defendant. The fact that he was a nervous horse, in the habit of 1 shying at vehicles to which he was not accustomed, would not justify the defendant in anticipating that he would run away, when he had never attempted to run before the time of the occurrence in question, and I do not think, therefore, the verdict was sustained by the evidence.