— The plaintiff brought this action to recover damages for the wrongful killing of her son, for whose estate she was appointed administratrix.
He was killed in September, 1879, while crossing a public street in the city of Hew York. At that time he was thirteen years and eight months old. From the corner of Pearl and Ferry street he, together with three others started to cross to the north-east corner of Pearl street and Peck slip, diagonally opposite.
While they were so crossing the street a horse driven by á person in the employment of the defendants collided with the deceased and so injured him as to produce his death. This horse took fright from the passage of a train on the elevated railway, and he became unmanageable and from that circumstance ran against and over the deceased.
At the particular time when this occurrence took place, and immediately preceding it, there may have been no want of care on the part of the person managing or driving the horse, if this had been the first time when he was exposed to the effects upon him of trains passing upon the elevated railway, it might be that the dismissal of the complaint, at the trial would be proper. But it was not, for the horse was taken to the same locality by the same driver on the preceding day and he then became frightened by the passage of a train on the elevated railway.
His account of what then took place is as follows: “ Q. Wliat took place in the conduct of the horse that day ? A. The cars frightened him. Q. What were his actions being frightened? A. Plunged right ahead. Q. How far did he run on that occasion ? A. About the length of himself below
The fact that the horse became frightened in this manner the day before the accident was a circumstance rendering it probable that he could not be taken into the same vicinity again without expecting a repetition of the same difficulty; and if that could not be done the inference is a plain one that he could not be used there without endangering the safety of persons equally entitled with the driver of this vehicle to make use of the street as the deceased was using it at the time of the accident. What might be apprehended did actually occur when this horse was next taken into the street. He became frightened and unmanageable, and from that cause the death of the deceased was produced. Whether persons lawfully using a public street should, in the exercise of reasonable care, be exposed to the risks of such accidents, would therefore appear under the circumstances to be rather a question for the jury than for the court to decide. If the driver could expose the horse to the same risk of fright on a second occasion without being chargeable with negligence in so doing, he might on any indefinite number of succeeding occasions, and in that way render him a continued source of danger to persons lawfully making use of the street. They would practically be deprived then of that protection which the law designs to secure by requiring the observance of due and proper care by persons in the use of public streets. And that would be as effectually done by taking the horse tne second time into the same vicinity where the passage of the train would be expected to alarm him as though the already observed effect had on several other occasions been encountered. When the horse became frightened by the passage of the train on the day preceding the accident, that was a circumstance from which it might well be inferred that he would be affected in the same manner whenever he should be taken to
It was a matter of inference to be deduced from the attendant circumstances, and what inference should be drawn it was the province of the jury to decide. In the case of Philadelphia Railroad Company, &c., agt. Stinger (78 Penn., 219), a point very similar to this in its character was considered by the court, and it was then in effect determined that a horse easily frightened by a locomotive could not again be taken and exposed in the same manner without rendering the person controlling him chargeable with negligence. These persons were equally entitled to the safe and free use of the streets. The fact that one was driving a horse gave him no advantage or superior right whatever over him who passed on foot (Barber agt. Savage, 45 N. Y., 191). Each was required to observe care for the purpose of avoiding risks or accidents, and when this horse was taken into the street with the. probable apprehension by the driver that he would become frightened and unmanageable from the passage of the cars, a jury might very well conclude that he had omitted that care and attention which reasonable and prudent men would have exercised, and had consequently violated his obligation to the deceased. The fact that the horse was frightened on the preceding day while he was being driven by the defendant’s servant was constructive notice to them of the occurrence itself (Story on Agency [4th ed.], sec. 140;
If he was negligent, the law imputes the same degree of negligence to those whose servant he was. The safety and security of persons using the public streets of a city on foot requires that the law shall be carefully guarded and enforced against those using vehicles and needlessly exposing them to danger. The protection of life can be secured in no other manner, and where the circumstances, shown by the evidence, are such that the jury may logically infer the existence of misconduct, involving a want of reasonable care or negligence, the case should not be withdrawn from their consideration.
The evidence made out a case of this description and it should not have been, as it was, withdrawn from the jury because there was no want of care on the part of defendant’s servant.
It is not necessary to consider the other propositions presented, whether the deceased was involved in fault, for the absence of fault upon his part, was assumed in the discussion and disposition of the case at the trial.
The verdict should be set aside and a new trial ordered, with costs to abide the event.
Beady, J., concurs.