This case as to the facts is very simple, and no question of law is involved. The defendant was delivering a load of coal to a church on Walden avenue in the city of Buffalo, N. Y., by *8means of a coal wagon and team of horses, which team and wagon were in charge of a driver employed by the defendant. When the driver (defendant’s employee) reached a point in the public street in front of the church at which the coal was to be delivered it was apparently necessary for him to ascertain just how and where such coal should be delivered, and at that time he stopped his team and alighted from the wagon, and in securing his team until such information could be obtained, he hitched the off or outside horse by a strap extending across the breast of the other horse and fastened to an iron railing in front of such church. While the driver was investigating as to how or where the coal should be delivered, the team became frightened, the strap extending across the breast of the other horse to the railing was broken, and the horses ran away, doing the damage complained of by the plaintiff. It is conceded that the plaintiff was not guilty of contributory negligence.
The jury has found a verdict for the plaintiff. As I have .said, it is expressly stipulated that the plaintiff was free from contributory negligence, and it is not urged that the verdict is excessive. Therefore, the only question presented is whether or not the defendant was guilty of actionable negligence.
I think that the manner in which the team in question was hitched by the defendant’s employee was sufficient to justify the finding of the jury that such employee was negligent in hitching such team. By such hitching from the outside horse to the railing the inside horse was unrestrained from pressing his entire weight against the hitching strap which was supposed to hold the team. As it seems to me, it was impossible for the strap thus fastened to hold the team, and it was a question of fact whether under those circumstances the team was properly fastened.
It is suggested by the prevailing 'opinion in this case that the trial judge charged the jury in substance that if the team was tied in the manner testified to by the plaintiff’s witnesses, to wit, from the bits of the outside horse across the breast of the horse next to the curb and then attached to the railing, no recovery could be had. It seems to me that that is not the meaning of the charge. The court said: “Well, it is the duty, of course, to securely fasten — that is, to use every rea*9sonable precaution to securely fasten them. If the testimony of the plaintiff is true that this hitching strap was broken, as far as the mere tying is concerned it appeared to have been sufficient, as far as being securely tied — if the testimony is true. But the rule is that one should use reasonable care to secure his team.” Counsel for the defendant asked the court to charge as follows: “I ask your Honor to charge the jury that if they believe that the strap (Exhibit 2) was a proper strap and that the horses were hitched as testified to, that then the defendant is entitled to a verdict of no cause of action.” The court: “ I think I will so charge.”
It appears that the strap with which the horses were hitched was submitted to the jury and their verdict indicates that they thought that the strap was not a proper strap for hitching horses under the situation disclosed by the evidence in this case.
My conclusion is, that the manner of hitching the team in question was negligent in the extreme, and that the jury having found that the strap used for the purpose of such hitching was inadequate and improper, their verdict that the defendant was guilty of negligence which resulted in the injury complained of was amply sustained by the evidence.
I, therefore, recommend that the judgment and order appealed from be affirmed, with costs.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.