Upon the 24th day of June, 1912, the plaintiff was injured in attempting to stop a runaway team belonging to the defendant, upon a public highway in the city of Schenectady. The team was attached to a coal delivery wagon and was running away with the empty wagon along the street upon which were play- ■ ing some children, among which children were two of plaintiff’s own. As he swears, in order to protect those children he ran into the street and caught hold of the running horses, and finally brought them to a stop; in so doing he was injured, and *883he now seeks to recover damages for such injuries. At the Trial Term a verdict was directed for the defendant, and upon the judgment entered upon such directed verdict this appeal is taken.
Plaintiff was entitled to have this case submitted to the jury both upon the question whether these horses were at all secured before they started to run, and also whether that security was adequate. It is true that the complaint seems to charge negligence only as to an entire failure to fasten the horses. But the case was tried upon both theories, without an objection having been once taken that the pleadings were insufficient. Hot having taken the objection at the time the respondent is not in a position now to urge that without an amendment of the pleading a recovery would not be authorized upon this specific ground that such fastening as was proven was insufficient. The fact that the horses were running away without a driver called for an explanation from the defendant. Prima facie that fact alone would seem to be some evidence of negligence upon defendant’s part.
If this be true, the only proof that the horses were fastened by two weights was the evidence of the driver and the evidence of the brewery man who was cleaning the coal. The evidence of the. driver is under suspicion, both by reason of his being in the employ of the defendant and also by reason of the fact that if the horses were not fastened he was the man responsible for the accident. The jury might well have found that the brewery man who received the coal, being down in the coal cellar, was not in a position to see whether these weights were attached to the horses or that he would not naturally have taken notice of such a fact. The plaintiff voluntarily placed himself in danger to avoid possible accident to some children from a runaway team. The facts of the case should be viewed fairly in his effort to recover damages for the injury resulting therefrom from the owner of the team,' which was thus permitted to create the dangerous situation.
The judgment should, therefore, be reversed, with costs to appellant to abide event, and a new trial granted.
All concurred, except Woodward, J., dissenting, in opinion, in which Kellogg, J., concurred.