Acker, Merrall & Condit v. Stern

49 Misc. 650, 97 N.Y.S. 1041

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1906
• Status: Published

Opinion

Scott, J.

I agree that this judgment should be reversed and a new trial had. That the defendants were guilty of negligence in leaving the horse standing unhitched and unattended is clear. Gerney v. City of New York, 102 App. Div. 259. The hypothesis that plaintiff’s horse ran into defendants’ rests merely upon inference drawn from a state of facts supported by very slight' evidence. Nor can it be said, upon the evidence, that plaintiff’s driver was shown to have been guilty of contributory negligence. He was confronted with a sudden and serious peril which necessitated quick thought and rapid action. Under such circumstances, he is not to be charged with negligence merely because, at the moment, he did not adopt the best course to avoid a collision. Indeed, it is by no means clear that he did not do all that any one could have done.

The judgment should he reversed and a new trial granted, with costs to appellant to abide the event.

Giegkebich and Geeenbaum, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.