Adam Raible, an Infant, by Sophia Raible, His Guardian ad Litem, Respondent, v. The Hygienic Ice and Refrigerating Company, Appellant

Adam Raible, an Infant, by Sophia Raible, His Guardian ad Litem, Respondent, v. The Hygienic Ice and Refrigerating Company, Appellant. Third Department, November 10, 1909. Negligence — animals — injury to boy from kick by horse — right of servant to employ substitute — appeal — power to review questions not raised on trial. It is not ordinarily negligence to permit a youth fifteen years old to lead a horse unless it has vicious tendencies, of which the person charged with the negligence should have been aware. Where a servant without authority delegates his personal duty and substitutes another in his place for his own convenience and accommodation, his master is not liable to such third person for injuries received by him. Where defendant’s stableman, who had no authority to employ assistants, called plaintiff, a boy fifteen years old, to lead a horse to the watering trough, although there was no emergency which rendered such assistance necessary, and the boy was kicked by the horse while returning from the trough, a judgment for plaintiff entered on a verdict rendered irrespective of the question whether or not the horse was vicious" and the fact was or should have been known to the defendant, issues not submitted to the jury, will be reversed. Upon an appeal from an order denying a new trial the Appellate Division has power to review questions of law and fact, although not raised on the trial. When the question involved entirely eliminates the defendant’s liability, it is the duty of the court to exercise such power, although no exception appears in the record. Appeal by the defendant, The Hygienic Ice and Refrigerating Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 16th day of April, 1909, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion fora new trial made upon the minutes. The plaintiff, fifteen years of age, was kicked by a horse which he had been leading to a watering trough to drink. The horse was one of a number used by the defendant in its business of manufacturing and selling ice. They were kept in a stable under the charge of a stableman named Joyce whose duty it was to care for them and give them food and drink. The watering trough was 168 feet from the stable. The plaintiff testified that he was on the opposite side of the street from where the horses were stabled when Joyce beckoned to him and told him to take the horse to drink and unloosened the horse in the stable and gave him in charge of plaintiff. On returning from the watering trough he received his injuries. He says that he liad never led any horse of the defendant before that occasion. For the injuries thus received he has recovered a judgment against the defendant and the latter appeals. Buchanan, Lawyer & Whalen [George Lawyer of counsel], for the appellant. H. J. Crawford, for the respondent. [MAJORITY — Cochrane, J.:] Cochrane, J.: There are two serious objections to this judgment. First. It is not, ordinarily, negligence to permit a youth fifteen years old to lead a horse unless the horse has vicious or dangerous tendencies of which the person charged with the negligence should have been aware. The evidence presented a question of fact as to whether or not the horse had previously manifested a propensity for kicking, but this question was not submitted to the jury. As the case was left with them they may very well, have found the defendant liable although at the same time believing that the horse had previously shown no vicious or dangerous habits. They should have been instructed that the dangerous character of the horse was a necessary prerequisite to plaintiff’s right to recover, whereas they were permitted to render their verdict irrespective of that fact. The case was submitted to the jury on an erroneous theory. Second. The act of the stableman Joyce in intrusting the horse to plaintiff was a delegation of his personal duty and the substitution of another in his place which was clearly beyond the scope of his authority and unauthorized by the defendant. (Driscoll v. Scanlon, 165 Mass. 348; Marks v. Rochester Railway Company, 146 N. Y. 181, 189.) It is not claimed that Joyce had any authority to employ assistance or that any emergency existed which made it necessaiy for him to call on a bystander to perform his personal duties. In the Marks Case (supra) the plaintiff was injured while temporarily rendering a gratuitous service at the request of the driver of a horse car which had become involved in a blockade, and the court said in discussing this question: “ It is not claimed that the driver had any general authority to employ servants for the defendant. If he had authority to employ assistance under the circumstances of the case, it was an authority outside of the general scope of his employment. Clearly he had no authority, express or implied, to call upon bystanders to assist him in the discharge of any service which he himself could reasonably perform. If third persons undertook upon his solicitation and for his convenience to assist him in extricating the car from the blockade, when he could have accomplished the work himself, no authority to employ assistance could be implied.” In this case Joyce, so far as appears, had no more authority to call on the plaintiff and permit him to load this horse to water than he would have had to employ a man to act as a substitute for him in the performance of his duties for an indefinite period of time without the knowledge of his employer. His act in substituting the plaintiff in his place was a personal one for his own convenience and accommodation for which the defendant was not responsible. It is claimed that the foregoing questions were not raised at the trial. This court is clothed with jurisdiction to review questions of law or fact and with or without exception. That such power exists is firmly established by authority. (McCrath v. Home Ins. Co., 88 App. Div. 153; Gillett v. Trustees of Kinderhook, 77 Hun, 604; Matter of Brundage, 31 App. Div. 348; Gowdey v. Robbins. 3 id. 353.) The motion for a new trial brought before the trial court as it brings before this court the entire case in review and in the exercise of its plenary power it should grant a new trial when as in this case no ground of liability whatever is shown to exist against the defendant. The power of the court to reverse without an exception or where the question was not raised in the court below will be sparingly exercised and only in extreme cases. But when the question is far reaching and involves the entire controversy and éntirely eliminates the liability of defendant as the record here discloses a situation is presented which makes it the duty of the court to exercise such power. The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.