Hiram W. Sheldon, Respondent, v. Otsego and Herkimer Railroad Company, Appellant

Hiram W. Sheldon, Respondent, v. Otsego and Herkimer Railroad Company, Appellant. Third Department, November 10, 1915. Railroad — negligence — injury to horses on city street — proof justifying judgment for plaintiff. Action to recover damages for injury to horses which, while being led through a city street, were struck by the defendant’s trolley car. Evidence examined, and held, sufficient to justify a verdict by the City Court in favor of the plaintiff and that the same should not be set aside as against the weight of evidence. Appeal by the defendant, Otsego and Herkimer Railroad Company, from a judgment of the County Court of Otsego county, entered in the office of the clerk of said county on the 3d day of April, 1915, affirming a judgment of the City Court of the city of Oneonta in plaintiff’s favor for the sum of $134 and costs. Owen C. Becker, for the appellant. Clarence E. Holmes, for the respondent. [MAJORITY — Smith, P. J.:] Smith, P. J.: I have given this case careful attention, because of the earnest insistence of appellant’s attorney that the facts proven do not justify the judgment recovered. I am unable, however, to agree with this contention. The plaintiff’s servant was riding one horse and leading two others along the streets of Oneonta. The defendant’s car came upon the street back of the place where these horses were being led, and when it came to these horses one of the horses jumped around against the side of the car and thereby became injured. It is the claim of the plaintiff, which the judgment of the City Court has established, that the car was negligently run and that more care should have been taken in approaching these horses, and, therefore, that the plaintiff is entitled to recover for the damage caused by the defendant’s negligence. It makes little difference whether the horse was hit by the forward end of the car or whether the horse jumped into the car. The defendant’s duty was to exercise care in running its cars upon a public street that accidents might not be caused. From the plaintiff’s proof it is possible to find that when this car was over a thousand feet from these horses the horses appeared frightened and were “bobbing” around and jumping upon the track, and that the defendant’s motorman ought to have seen them and brought his car down to a very slow pace, if not to have stopped it for the moment entirely. It may also be found from the evidence that the motorman, disregarding his duty, either did not slow up at all or at least did not slow up sufficiently, and that by reason thereof the horses became frightened when the car was opposite them and in their fright this damage was caused. It is true that the testimony of the plaintiff’s servant is the only testimony in behalf of the plaintiff. This servant is not now in the employ of the plaintiff. Nevertheless he is clearly interested in the action. So also are the defendant’s witnesses, the motorman and conductor of this car. They swear that the car was brought to a slow pace and that there was no evidence of any fright on the part of the horses. It seems clear in reviewing the evidence that a question of fact was presented, and that there was sufficient evidence upon which the City Court could base this judgment. Of course we cannot see the witnesses. They were before the City Court judge. He could judge of their credibility. We would not be justified, nor would the County Court in the case at bar have been justified in setting aside this verdict as against the weight of evidence. I recommend, therefore, that the judgment be affirmed, with costs. Judgment unanimously affirmed, with costs.