Mary Larkin, as Administratrix, etc., of Thomas J. Larkin, Deceased, Respondent, v. Reid Ice Cream Company, Appellant

Mary Larkin, as Administratrix, etc., of Thomas J. Larkin, Deceased, Respondent, v. Reid Ice Cream Company, Appellant. Second Department, March 6, 1914. Negligence — pedestrian killed while attempting to stop runaway horse — defective snap hook connecting bit with jaw strap — res ipsa loquitur. In an action to recover for the death of plaintiff’s intestate, killed while attempting to stop a runaway horse belonging to the defendant, it appeared that a snap hook used to connect the bit ring on one side . with the jaw strap gave way, allowing the bit to fall from the horse’s mouth and rendering the driver powerless. Held, that the doctrine of res ipsa loquitur applies, since the occurrence is one that could not have happened without negligence. Appeal by the defendant, Reid Ice Cream Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of April, 1913, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. ^ Action to recover damages for the death of plaintiff’s intestate who was killed while attempting to stop a runaway horse owned by defendant. James J. Mahoney [George J. Stacy with him on the brief], for the appellant. Ellis L. Aldrich, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: Defendant was not held because its horse bolted and ran. Its liability comes from the bit falling out of the horse’s mouth, rendering the driver powerless. The bridle, designed to allow feeding in harness, did not have the bit rings held up on both sides to the jaw straps by buckles. On one side the strap was attached to the ring by a clasp or snap hook, so that the bit could be disconnected when the horse was fed from a nose bag. It was this snap hook which gave way and released the bit as the driver tried to check the horse’s flight. Defendant maintained that the snap hook was perfect, and the reins properly attached. Hence defendant could give no explanation for this occurrence or account for the snap hook "being separated from the bit. Obviously it might happen from a weakened or worn snap hook; and defendant’s driver also admitted that if the driving rein was attached to the ring forward of the snap hook sucha crossing over the snap hook might work it loose. Even if plaintiff could not specify which of these causes let out the bit, yet, as the occurrence was one that in common experience could not happen without negligence, it presented a prima facie case for the jury. (Robinson v. Consolidated Gas Co., 194 N. Y. 37, 40.) The jury, therefore, could find for plaintiff upon the defendant’s failure to account for this slipping out of the bit without negligence on the part of defendant (Sweeney v. Edison Electric Eliminating Co., 158 App. Div. 449), taken in connection with plaintiff’s evidence of defects in the snap hook given by three witnesses whose attention had been directed to it when the horse was finally stopped and held. The complaint and bill of particulars both alleged “ defective harness.” The court, therefore, rightfully refused to narrow the issue to the question merely of a defect in the ■ clasp or hook. But the court did charge that the “duty of showing the cause of the snap or bit becoming separated one from another is upon the plaintiff ” — certainly as favorable as appellant could ask. The judgment and order are, therefore, affirmed, with costs. Present—Jenks, P. J., Thomas, - Eich, Stapleton and Putnam, JJ. Judgment and order unanimously affirmed, with costs.