This action is brought to recover damages for an injury caused by reason of the negligence of the defendant, and can be supported only by proof of such want of care as constitutes actionable negligence. At the trial the only fact offered in proof of the alleged cause of action was the defendant’s leaving his horses, that were harnessed to a wagon, standing on his land near his house, without tying them or leaving them under the charge of any other person. The verdict shows that this fact, though there was conflicting testimony concerning it, was found by the jury, and that they also found that it was legal proof of such want of care as rendered the defendant liable for the injury sustained by the female plaintiff And the court are of opinion that evidence of the defendant’s being a careful, prudent and cautious man was not admissible for the purpose of showing that he used, in this instance, such care of his horses as the law requires in order to exempt him from responsibility for the mischief produced by their escape into the highway. When the precise act or omission of a defendant is proved, the question whether it is actionable negligence is to be decided by. *187the character of that act or omission, and not by the character for care and caution that the defendant may sustain.
If such evidence as was offered and rejected at the trial is ever admissible, in a case like this, we incline to the opinion that it is only when the plaintiff attempts to prove the defendant’s negligence by merely circumstantial evidence, or, perhaps, by witnesses shown to be of doubtful veracity. These exceptions do not show, nor was it suggested in argument, that the excluded evidence was admissible on either of these grounds. See 1 Greenl. Ev. § 54; Wills on Circumstantial Ev. 131; Townsend v. Graves, 3 Paige, 455; Gough v. St. Johns, 16 Wend. 646. Exceptions overruled