(dissenting). I do not concur in the view that the ■evidence entitled the plaintiff to go to the jury. Prior to the runaway which resulted in serious injury to the plaintiff’s horses and wagon, defendant’s team had been much used, and had proved to be ■gentle, free from fright, and without any kind of fault. Defendant’s driver was a man of large experience in driving and handling horses, and his competency is not questioned. When defendant’s family started out for one of their accustomed drives through Central park on the occasion in question, the victoria was in the best •of order, the harness was in good condition, the horses were properly hitched, and the driver was properly mounted in his seat on the victoria, with the reins well in hand. Up to this point, therefore, no basis can be found for charging the defendant with negligence. But it is said the driver could have averted the collision by guiding his horses to the right, and that, because of his failure to thus obey the law of the road, the master is liable for the damages which resulted to plaintiff. If it be the fact that the presence of *577the runaway horses on the wrong side of the road was due to the fault of the driver, the proposition is sound; otherwise not. As the driver was in great peril, and menaced with frightful possibilities of injury to the occupants of the carriage and himself, whether he was at fault in failing to guide the horses to the right cannot be determined by the test which applies where opportunity is afforded for calculation and the exercise of judgment, unhampered by fear. But the distinction need not be insisted upon; for, as I view the evidence, if it should be assumed, as the prevailing opinion of the court necessarily does, in effect, that defendant is liable if it was within the bounds of possibility for the driver to have guided the team to the right, the plaintiff should not have recovered, because the undisputed evidence was that the driver did his best to so guide them, and failed. He said:
“I was on the right-hand side of the drive at that time, going north. The ladies were in the carriage. It was a victoria, and I was on the box. Before the fright of the horses, I was doing and driving as usual. I had hold of the lines in the usual way. I was going down grade a little. That was about Eighty-Sixth street, and there was a single horse, what I call a ‘trotter,’ coming up. The trotter was coming south, coming meeting me, and I don’t know whether the gravel went from the wheels, or from the horse’s foot It went up on my nigh-side horse’s back, and he kicked up, and his leg went over the pole, and they ran away on me. They ran straight as far as the road was straight, and then, when they came to the corner, they went to the gutter. I tried with all my might to pull them out of the gutter, and could not do it. * * * The trotter was coming down; was coming meeting me. The trotter was coming to my left. The sand that was thrown up struck the near-side horse,—the one on the left. It was the horse on the west side that the gravel struck. * * * When the stone or sand struck the horse, I tried to steer them and stop them. I managed my lines with both hands. I kept them on my own side as far as the road went straight, but, when they came to the corner, they went straight on, and I could not get them out. They went to the gutter, and I pulled them, on the off horse, with all my might, and I could not get them out of there. I pulled and was pulling and doing all that I possibly could all the time to stop them and steer them.”
The witness was not a party to the action. He was in no respect discredited. His testimony was not disputed by any witness, either directly or by stating circumstances permitting a contrary inference; but an attempt was made to create an issue of fact by the testimony of so-called “experts.” They were called upon to testify that runaway horses could be guided. Before referring to their testimony, it should be said that the fact was established beyond controversy that, before commencing to run, one of the horses got his leg over the pole, where it remained until after the collision.
John B. Darr testified that runaway horses could be guided, although it was impossible to stop them. When asked whether a horse would not try to pull his leg off the pole, and thus draw it towards him, he answered:
“All the horses I ever bad over the pole always tried to kick and get the leg back again.”
That defendant’s horse did not try to do, and therefore this expert’s experience did not include a similar case.
*578John S. Ferguson, the only other witness who gave a similar opinxon, said that his personal opinion was confined to four runaways, and he admitted that he never had a horse get his leg over the pole.
Plaintiff’s witness Dr. Cattnacht said:
“And it is a fact that a horse, taking fright and getting his right leg—off hind leg—over a pole, and still laboring under the fright, will pull with an effort to get his leg from over the pole; will so pull in a direction opposite to the pole. In such a case the bit will not control the horse, but his body will pull the team in a direction opposite to the pole. * * * I have seen the leg over the pole; yes, sir. A horse with the leg over the pole. The leg over the pole would goad the other horse to madness, * * * and frighten the other horse, you will observe; and that is the way I saw it when I have seen it. * * * I have seen such running away that could be stopped by the driver, and I have seen it when it could not be stopped. It depends on the spirit of the horse. If a horse has his leg over the pole, the other horse would cany him. * * * His leg which is over the pole would be stretched out towards the other horse, * * * and, when he came in contact with the other horse’s leg, he would be apt to frighten the other horse. Then the other horse would run. I don’t think that the force which would take the horse with his leg over the pole along would carry the carriage to the right, because your dead weight is on the left. * * * I don’t think you could turn him, sir. I don’t think you could turn him to the right. I have seen them run a quarter of a mile that way.”
John Murphy, another witness called by the plaintiff, testified that he had been a park policeman since 1885, and had caught as many runaways as any man in the service:
“It is my experience that, when a frightened team is running away with one of the horses having his hind leg over the pole, it is impossible for the driver, no matter how skillful, to control or direct the team with the lines. It is impossible. It is impossible without some assistance, or unless the horse will bring his leg back from over the pole. I have had several cases of it”
Redirect examination by Mr. Dyett:
“Q. Officer, do you mean that when a horse gets his leg over the pole, that you cannot guide him, or that you cannot stop him? A. Yes, sir; I mean that the coachman has no power over him at all. Q. What? A. I mean that the driver has no power over him at all. Q. How do you mean? A. No power at all over him, for to pull them horses up. Q. To pull him up? A. No. ' Q. That is, the horse will go where you guide him until he gets his leg from- A. Go? He will kick; he will do mischief; will tumble,—everything. He is out of control. I have had as many, I venture to say, as twenty or thirty of them, of that kind of runaways.”
It seems to me absurd to say that the opinions of two alleged experts as to the possibility of guiding runaway horses, one of whom never had a case where one of the horses had his leg over the pole, and the horses of the other had always kicked to get off the pole, put in issue the positive testimony of the driver that he tried with all his strength to guide the horses to the right. If this position be right, defendant’s motion to dismiss the complaint should have been granted. But, assuming that the driver’s testimony of what was done was put in issue by Darr’s and Ferguson’s opinions as to what can generally be done, still a new trial should be granted, because of the refusal of the court to grant a new trial on the ground that the verdict was against the weight of evidence. Against Darr’s and Ferguson’s opinions were pitted, not only the opinions of plain*579tiff’s witnesses Dr. Cattnacht and John Murphy, to which reference has already been made, but also the opinion of other witnesses of equal or greater experience.
George B. Arnold, a foreman in a livery stable at 141 East Twenty-Third street, and a practical coachman, etc., for 22 years, said it is impossible for any driver to stop or control a runaway frightened team of good horses with one of them having a hind leg over the pole, and that he has had such cases himself.
Henry C. Overin, a livery stable man, now in business in Forty-Second street and Seventh avenue, and also on Broadway, between Forty-Fifth and Forty-Sixth streets, a member of the firm of Overin & Market, in the business and a practical driver himself for 25 years, and who has had much' experience with runaway horses himself, said horses frightened and running away cannot be managed or controlled or stopped, especially if one of the team has its leg over the pole. “You cannot guide a runaway horse, even if the leg is not over the pole.”
Isaac Strauss testified that he was in the horse business, had driven horses all his life, considered himself a good horseman, and had had horses run away with him-. Whether hcrses running away could be controlled, he said:
“Well, I have never had the experience that I could control a horse when he is frightened, if he loses his head and cannot be controlled. A horse is a good deal stronger than a man. He is a good deal stronger than five men. _ Q, When a horse is frightened, and is running away, he don’t ob y the rein, does he? A. His mouth becomes numb, and you cannot pull him anywhere; it is impossible. Q. Have you ever seen a case where a team has taken fright, and one of the team gets his hind leg over the pole, and that team, in that condition, frightened, one leg over the pole, running away? A. I have, sir.”
Patrick Clark, a dealer in horses at 648 Broadway, American Horse Exchange, and a practical driver of coaches and private teams, who has driven first-class and valuable horses of all kinds, said:
“A pair of runaway horses, able-bodied, good horses, running away from fright, cannot be controlled or stopped by a driver, a skillful, good, competent driver; not by any man. They cannot. I have experienced it.”
He further said:
“It is impossible for the defendant’s driver, on the facts shown by the defendant in this case, to have stopped or controlled the direction or speed of the defendant’s team.”
Dr. James Haley, a veterinary surgeon, who has driven many and very good horses, and has given much attention, made many observations, and had much experience as to runaway horses, and gives instances, said:
“From knowledge of horses that I have from my profession of veterinary surgeon, and from my prior dealing with horses, and from driving myself, and from observing the driving of both single and double, in my opinion it is not possible for even the most skillful and able driver to control, by way of stopping or directing, the motion of a runaway team, which tram can trot a mile in about three minutes. When the team is going at the rate *580of 16 or 17 miles an hour, and down a little grade, one of the horses with his leg over the pole,—the hind leg over the pole,—it is not possible, in my opinion.”
If plaintiff’s expert testimony tended to put in issue the testimony of defendant’s witness describing what was actually done by him in his attempt to control the team, which I deny, still it was so fully met and overborne by other witnesses of equal experience called by plaintiff and defendant as to render a finding in hostility to the testimony of Frazin, who was not discredited in any way, clearly against the weight of evidence. That being the case, it is the duty of the court to reverse the judgment; and I so advise.