Joseph H. McGuinness, an Infant, by James C. McGuinness, His Guardian ad Litem, Appellant, v. John H. Plate, Respondent

Joseph H. McGuinness, an Infant, by James C. McGuinness, His Guardian ad Litem, Appellant, v. John H. Plate, Respondent. Judgment reversed and new trial granted, with costs to appellant to abide the event. We think plaintiff’s evidence presented a prima facie case of negligence. Whether the explanation of the cause of the horse running away was sufficient to meet this prima facie ease and to absolve defendant from the charge of negligence was for the jury in the first instance, subject to the power and duty of the learned trial justice to set the verdict aside, if he deemed it against the evidence. The defendant and his driver were both interested witnesses and their credibility was for the jury. We also refer to the fact that there was no warrant for the entry of a judgment dismissing the complaint upon the merits. The complaint was not dismissed upon the merits, and the extract from the minutes upon which the clerk entered the judgment contained no statement to that effect. [MAJORITY] Jenks, P. J., Rich, Blackmar, Kelly and Jaycox, JJ., concur.