Opinion
July Term, 1899.
C.E. Spencer, for the appellant.
A. Lee Olmsted, for the respondent.
On the afternoon of July 23, 1898, one of the defendant's street cars, while running upon Midland avenue in the city of Syracuse, came into collision with the plaintiff's mare and injured her to such an extent that it became necessary to kill her.
At the time of the accident the mare was being exercised by a negro boy, who was riding her, and she was traveling in a southerly direction on the eastern side of the avenue, and about fifteen feet east of the tracks upon which the defendant's car was running.
This car was operated by electricity, and was moving in the same direction as the plaintiff's mare, the mare being some distance ahead of the car. As the car approached, the mare took fright and began to rear and plunge, and her rider, finding himself unable to manage her, raised his hand as a signal of distress. The evidence tends to show that at this time the car was about sixty feet distant from the mare, and in a few seconds thereafter the mare moved rapidly sidewise and backwards towards the car, and was then struck by the southeast corner of the car, receiving the injuries complained of. At or about the time of the accident the car was running at the rate of eight or ten miles an hour, which, it is conceded by the plaintiff, was neither an unusual nor an improper rate of speed; and the only negligence complained of is, that the motorman failed to observe the following rule which had been previously adopted by the defendant for the information and government of its employees: "If a horse or any other animal becomes frightened at the approach of your car, stop until the animal passes."
Upon examining the record in this case, we find that the evidence bearing upon the question of the defendant's negligence is not altogether satisfactory, nor are we by any means certain that it is sufficient to support the plaintiff's recovery; but we do not deem it necessary to determine that question, inasmuch as we have reached the conclusion that a new trial must be granted by reason of certain erroneous rulings of the trial court.
It seems that the plaintiff's mare was a race horse, and that her value depended in a large measure upon her pedigree and upon the fact that her pedigree was such as to entitle her to be registered in what is known as the "Turf Guide."
Upon the trial it was made to appear that the mare's name was "Balleen," and that she was sired by a stallion by the name of "Ballard," and the plaintiff was permitted, over the defendant's objection and subject to an exception, to prove that a mare by the name of "Balleen" was registered in this book. In like manner, the plaintiff was permitted to show by a witness by the name of Durker that he had known of horses winning races which were reputed among horsemen to have been sired by the stallion "Ballard."
We think evidence of this character was clearly inadmissible in this case, inasmuch as the pedigree of the plaintiff's mare was not directly in issue, and was only relevant to the real issue by reason of its bearing upon the question of value. (7 Am. Eng. Ency. of Law [1st ed.], 74; Eisenlord v. Clum, 126 N.Y. 552, 566.)
Moreover, the evidence fails to establish the fact that the mare registered in the turf book under the name of "Balleen" was the plaintiff's mare.
It is true that the witness Durker testified that it was not usual to register two horses of the same generation under the same name, but this witness also testified that he did not know who gave the name of "Balleen" to the plaintiff's horse; that all he knew about it was that the plaintiff called her "Balleen," and that he found the name "Balleen" in the turf book, and this evidence was supplemented by that of another witness, whose statement was not denied, that it was not an unusual thing for an unregistered horse to bear the name of one that was registered.
That this character of evidence was highly prejudicial to the defendant is manifest from the fact that nearly all of the witnesses upon the question of value based their estimate upon the circumstance that the mare was a thoroughbred, and as such entitled to registry.
The plaintiff's witnesses stated that in their opinion the mare was worth anywhere from $500 to $1,000, while the defendant's witnesses placed her value at about $150; but upon cross-examination they admitted that if the mare was a registered thoroughbred, their estimate of her value was incorrect; and the verdict of the jury would seem to indicate that the evidence as to the pedigree of the mare, and that she was registered, was quite potential in determining the conclusion reached by them upon the question of value.
The judgment and order should consequently be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.