John S. Marshall, Respondent, v. Auburn and Northern Electric Railroad Company, Appellant

Fourth Department, January, 1908. John S. Marshall, Respondent, v. Auburn and Northern Electric Railroad Company, Appellant. Negligence—injury to runaway horse on street railway tracks—duly of railroaddo erect harrier under franchise. Appeal from a judgment in favor of the plaintiff, entered in the Cayuga county clerk’s office June 26, 1907, upon a verdict for §1,600, rendered in Cayuga County Court; also an appeal from an order entered September 28, 1907, denying defendant’s motion for a new trial upon the minutes. Judgment and order affirmed, jvitli costs. All concurred, except McLennan, P. J., who dissented in a memorandum, and Williams, J., who.dissented. [MAJORITY — McLennan, P. J. (dissenting):] McLennan, P. J. (dissenting): I dissent .upon the ground that the omission by the defendant to erect a barrier such as would prevent a runaway horse from running upon and over the portion of the street in question did not establish negligence úpon the part of the defendant;, that the. barrier Contemplated in the franchise was such as would warn persons driving upon the street in question, rather than protect them from any accident resulting from the occupation of such street.