This action is brought by the plaintiff, as administratrix, to recover damages for the death of the intestate, her son, a lad of about fourteen years of age.
On the trial it appeared that the intestate was killed by a horse and cart of the defendants, driven by their servant, who was engaged in carting leather for the defendants from their place of business to a place of shipment.
The horse and cart, it appeared, were crossing Pearl street, from Peck slip, under the New York Elevated Eailroad. When about the length of the cart and horse from the railroad, a train ivas heard a short distance from the crossing which passed over the horse while he was under the track. *440The horse was on a walk at the time, but was frightened by .the cars and suddenly jumped into a gallop, running a short distance into Ferry street, and in doing so ran over and killed the intestate, who, with several other lads, was at that moment crossing diagonally from Ferry street to Peck slip. The driver did all in his power to hold the horse and shouted to the boys, but owing to the noise of the train, was not heard before the accident. He succeeded in stopping the horse a few lengths beyond where the boy was hit. A witness of the plaintiff, who was standing by and saw the horse start and the. accident, and immediately after picked up the deceased, testified that the driver of the cart was in nowise to blame, but did all in his power to hold the horse.
There was no evidence that the horse was a vicious one or had been accustomed to run away, except that his driver testified that on the day before in driving under the railroad at the same place, as the train passed over him, the horse had suddenly jumped, but was stopped in going three times his own length. The ordinance of the city forbidding fast driving was put in evidence. At the close of the evidence the court was of opinion that the plaintiff did not give sufficient evidence of negligence to justify a verdict in his favor, and granted the defendant’s motion to dismiss the complaint, to which exception was duly taken. Whereupon, on plaintiff’s motion, exceptions were ordered to be heard in the first instance at the general term. We are of opinion that the disposition made of the case by the learned judge at circuit was correct. The evidence did not show a wrongful driving within the meaning of the ordinance, forbidding the driving of horses beyond a certain rate of speed in the city. They relate to intentional fast driving and not to runaways, which the driver seeks to, but is unable to prevent. There was no negligence shown in the management of the horse on the occasion of the accident, nor any proof of want of skill in the servant as a driver. The whole case rests upon the single fact that the horse had been frightened and jumped on the day before, and turns *441upon tlie question whether what transpired at that time was sufficient to make it negligence on the part of the defendants to allow the use of the horse for their business purposes at or near the elevated railroad. It did not appear that either of the defendants knew of the incident of the day before, or that with notice of that incident, they had allowed the use of the horse to be continued.
But it may be assumed that the knowledge of their agent, under the circumstances, was their knowledge, and therefore it was necessary to determine whether what occurred on the day before was sufficient to require them to refrain from using that horse in the manner and place in which he was being used at the time of the accident.
The horse appears to have been seven or eight years old, and had been used as a cart-horse in the ordinary business of carting the plaintiffs commodities, and no proof was given of any previous indication that his use, if continued, would be dangerous, except the single incident mentioned. That proof only tended to show that the horse had jumped from sudden nervous excitement, occasioned by the train, but was immediately, and within three of his own lengths, brought down to a walk. And the fact tended more strongly to show that he was easily controllable and not dangerous, than to establish the contrary.
The most quiet horses accustomed to such trains are likely sometimes to be startled by the noise of the train to an extent equal or greater than that shown by the defendant’s horse. But if they immediately yield to the restraint and control of the driver and become steady and quiet, it is rather evidence of the absence of viciousness or propensity to run away than otherwise.
To hold that upon such a fact alone the use of the business horses of the city must be abandoned or their owners subjected to damages for accidents that may be occasioned by a sudden fright without any fault or negligence on the part of the driver, would be carrying the rule beyond any of the cases.
*442If a horse be known to be in the habit of running away or to be vicious in any respect and liable for those reasons to do damage in the street, then the owner must use him at his peril and will be subject to liability for such injuries as his use causes.
That rule we think is not applicable to this case, and we are therefore of opinion that the exceptions should be overruled and judgment ordered on the verdict for defendants.
Note.— On the new trial judgment was rendered for plaintiff, from which no appeal has been taken. [Rep.