The defendant’s team ran away and collided with the plaintiff’s team, which plaintiff was driving in one of the public streets in the city of Buffalo, killing one of the plaintiff’s horses. The jury rendered a verdict in favor of the plaintiff for the value of the horse, predicated upon negligence.
The evidence shows that the defendant was delivering a load of coal to a certain church. The team was in charge of a driver who testified that after reaching the church he tied the outside horse of the team to an iron railing, and then left the team and entered the church basement. The reason he hitched the outside horse, as it seems, was because that horse was young and full of life; the other was not. Apparently, the horses became frightened, broke the tie strap and ran away. *7One part of the tie strap was still hanging to the bridle after the team was caught; the other was tied around the railing, as several witnesses testify, although one of the witnesses, who caught the horses, did not observe the broken tie strap hanging from the bridle.
The broken tie strap was produced in court and seems to have been suitable for hitching purposes. The weight of the evidence is that the horse was tied as the defendant’s driver testified, and the learned trial judge so held, saying in his opinion delivered upon the motion for a new trial that if the case is to turn upon the simple fact as to whether the horse was tied to the railing, the verdict should be set aside as against the weight of the evidence. But he seems to have concluded to sustain the verdict upon the theory that the jury might find that the team was not properly secured, because only one of the horses was tied, and that one the outside horse, with the tie strap running across and in front of the other horse to the iron railing, so that if the team became frightened the tie strap might easily be broken by the untied horse coming in contact with it.
I think this phase of the question was covered by the main charge, but the, difficulty in sustaining the verdict upon that theory is that the judge charged the jury afterward, at the request of the defendant’s counsel, that if the jury believed that the strap was a proper strap and that the horses were hitched as testified to, then the defendant would be entitled to a verdict of no cause of action. That necessarily excluded the other grounds. I think the evidence is insufficient to sustain the verdict upon that theory, or at least the verdict is against the evidence upon that question.
The judgment and order should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred, except McLennan, P. J., who dissented in a memorandum.