Opinion
Argued March 14, 1916
Decided April 11, 1916
Edgar T. Brackett, John F. McIntyre and Leonard F. Fish for appellant. E. Clyde Sherwood, Edward J. Redington and Amos H. Stephens for respondent.
The action is at common law to recover the damages for the alleged negligence of the American News Company causing injuries to the plaintiff. The company is a voluntary unincorporated association consisting of more than seven members. The action is brought against its president under a provision of the Code of Civil Procedure (section 1919). The jury rendered a verdict in favor of the plaintiff. The Appellate Division reversed the judgment entered upon the verdict and dismissed the complaint upon the ground, as expressed in their opinion: "There is no evidence to sustain the finding of the jury that the defendant was negligent, and for that reason the motion to dismiss the complaint at the close of plaintiff's case and at the close of the evidence should have been granted." Therein the Appellate Division erred.
The jury were at liberty to find as facts under the evidence: The plaintiff, when injured, was driving a team of horses hitched to a loaded truck. The horses and truck were owned and operated by the company and were driven by the plaintiff in the course of his employment. One of the horses was habitually balky in drawing the truck when loaded and when he balked would kick viciously and bite his mate, causing it to pull or lurch. The company had knowledge of those facts. It did not warn or instruct the plaintiff of their existence. On the occasion of the injuries to the plaintiff the balky horse conducted himself in the manner described. The plaintiff dodged the kicks by shifting his position upon the driver's seat, and as he was doing so the mate of the balky horse lurched, "gave a strong, sudden pull to the left," and through the reins pulled the plaintiff, who was a little off his balance, to the street, where the wheel of the truck ran over and injured his hands. The injuries were, within reason, to be apprehended by the company. The principal question presented to us is: Was the defendant wholly guiltless of negligence, as a matter of law, in thus furnishing the plaintiff for his use in his work a horse and team of the habits and character described.
The plaintiff was not injured through the keeping by the company of a vicious horse and its acts directly upon him. The action is not within the class arising from injuries done by domestic animals, which are vicious and which are known by their owners or keepers to be vicious. ( Muller v. McKesson, 73 N.Y. 195; Lynch v. McNally, 73 N.Y. 347; Worthen v. Love, 60 Vt. 285; Earbart v. Youngblood, 27 Pa. St. 331.)
The company, as the employer, was under the duty to furnish instrumentalities and appliances reasonably safe and suitable for the authorized use to be made of them by the plaintiff as the employee. The duty related and was applicable to the horses, as well as to the harness and truck and the appliances connected with it. ( Nooney v. Pacific Express Co., 208 Fed. Rep. 274; Yarmouth v. France, 19 Q.B.D. 647; Hammond Co. v. Johnson, 38 Neb. 244; Knickerbocker Ice Co. v. Finn, 80 Fed. Rep. 483; Simonds v. Interstate Lumber Co., 215 Mass. 263.) Failure on the part of the company to fulfill such obligation constituted negligence, and actionable negligence in case it caused or contributed to the injuries received and those injuries were reasonably apprehensible. The evidence tended to show actionable negligence on the part of the company.
The Appellate Division held the judgment erroneous as a matter of law, and have not yet passed upon the weight of the evidence. The judgment should be reversed, with costs to appellant in this court, and the case should, therefore, be remitted to the Appellate Division for its consideration of the facts. ( Gombert v. Niagara Junction Ry. Co., 217 N.Y. ___.)
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, HOGAN, CARDOZO and SEABURY, JJ., concur.
Judgment reversed, etc.