John McGrath, Respondent, v. The Third Avenue Railroad Company, Appellant

John McGrath, Respondent, v. The Third Avenue Railroad Company, Appellant. Negligence— what facts do not justify an inference that a h/yrse died, from the effects of a collision. In an action brought to recover the damages resulting from personal injuries and from the loss of a horse alleged to have been occasioned by a collision caused by the defendant’s alleged negligence, the evidence was to the effect that the horse was thrown down by the force of the collision, immediately got up and was driven off without any appearance of injury. After the accident the horse “ pined away,” was afflicted with sore throat, and died in three weeks. Held, that an inference that the death of the horse resulted from the collision was ' not justified. ■ Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 31st day of January, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Queens, and also from an order bearing date the 23d day of January, 1896, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. This action was brought to recover damages resulting from: (1) Personal injuries received by the plaintiff in a collision with the defendant’s car while he was driving his horse and wagon across the defendant’s street railroad tracks, due, as alleged, to the negligence of the defendant’s servants; and (2) from injuries to said wagon and the loss of said horse, which latter died a few weeks afterward in consequence, as alleged, of injuries received at the time of the accident. B. Franklin de Frece and William W. Cohen, for the appellant. Thomas C. Kadien, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : Upon the main question of the negligence of the defendant and of contributory negligence upon the part of the plaintiff, we are of opinion that the evidence is sufficient to uphold the recovery for the personal injuries sustained. It would be of little service to here set down the process of reasoning by which this result is reached, as it simply involves the application of well-established rules to slightly differing proof. So far as the injury to the horse is concerned, a different question is presented. There, does not seem to be any sufficient evidence to show that the death of the horse was a consequence of the accident. The evidence upon this point tended to establish that the horse was thrown down by the force of the collision, immediately got up, was again attached to the wagon and driven off. There was no appearance of injury to the horse, and it exhibited none as it moved off. The only testimony showing its subsequent condition comes from the plaintiff, and is in substance that after the accident the horse was “ pining away; ” that it was afflicted with a soreness of the throat, Avhich was the only trouble, • and that it died in three weeks. The evidence does not show that the horse was injured in the throat or elsewhere, nor was any attempt made to show connection between any injury .and the disease of which it died. Inference from the testimony that the throat trouble was the result of the accident we do not think is permissible, as such a result would be quite unusual and is in no sense a natural consequence. The proof of the value of the horse is unsatisfactory and much of the testimony bearing thereon was incompetent. The • court declined to charge that there conld be no recovery for its value. Counsel for appellant raised all of these questions upon the trial, and now insists that for the errors thus committed the judgment must be reversed and a new trial ordered. This result would inevitably fellow if we were unable to relieve defendant from the conse-quences of the error. But the value placed upon the horse clearly appears, and if we deduct this amount, as we may do (Ludlow v. McCarthy,5 App. Div. 517-519), then defendant will have sustained no injury therefrom. The value of the horse was placed at $200. This sum should be deducted from the amount of the recovery. The judgment will, therefore, be modified by deducting therefrom the sum of $200, together with a proportionate amount of the extra allowance, and as thus modified should be affirmed, without costs to either party in this court. All concurred. Judgment and order reversed and new trial granted, costs to .abide the event, unless plaintiff stipulates within twenty days to deduct from the verdict the sum of $200, with a proportionate amount of the extra allowance, in which case the judgment so reduced is unanimously affirmed.