The defence assumed at the trial was, that the driver of the plaintiff’s coach and the defendant were both in fault, whereby the plaintiff’s horse was injured as alleged in the declaration. This defence was sustained by the presiding judge at the trial, who instructed the jury that as the plaintiff’s driver was himself in fault, in the manner stated by the defendant’s counsel, the action could not be sustained, and directed them to give a verdict for the defendant. This direction assumed a fact as proved, which should have been left to the jury on the evidence ; and for this consideration, we are of opinion that the plaintiff is entitled to a new trial.
It was argued by the defendant’s counsel, that the fact of the negligence of the plaintiff’s driver was clearly proved by a witness called by him ; and as justice has been done, the court, in their discretion, ought not to interpose and disturb the verdict, *276notwithstanding the misdirection. And we are inclined to the opinion, that if the fact were clearly proved by the uncontradicted testimony of the plaintiff’s witness, and would be a good defence, the objection to the motion for a new trial would be well founded. A like motion, in the case of Nichols v. Goldsmith, 7 Wend. 160, was denied on this ground.
But we are of opinion that the fault of the plaintiff’s driver is not satisfactorily proved. All that is proved is, that he had been in fault! previously to the transaction complained of. But this was no justification for the defendant in the commission of the like fault. And it appears, by the evidence reported, that the injury complained of was solely caused by the misconduct of the defendant. He drove the plaintiff’s horses into a snow drift; and it was testified by the witness, that Littlefield, the plaintiff’s driver, tried to avoid him all he could. It is not therefore necessary to consider the question whether it would be a good defence to prove that the plaintiff’s driver was in fault in the transaction complained of, as well as the defendant; as we think the evidence would not warrant a jury in finding that fact.
New trial granted.