Tietje & Christ v. Catalona

95 A. 733, 88 N.J.L. 63, 3 Gummere 63, 1915 N.J. Sup. Ct. LEXIS 14

• Court: Supreme Court of New Jersey
• Decided: November 11, 1915
• Status: Published

Opinion

The opinion of the court was delivered by

Trenchard, J.

This is an action for damages brought by the plaintiff to recover for an injury done to his plate glass window alleged to have been occasioned by a horse and wagon of the defendant left standing in the public street without being in charge of any person and without being tied or otherwise secured.

The judge sitting without a jury rendered judgment for the plaintiff and the defendant appeals.

We are of the opinion that the motion to nonsuit, based upon the ground of no evidence of defendant’s negligence, was properly refused. The evidence, at the time the motion was denied, disclosed the unexplained presence of the defendant’s horse, harnessed to a wagon, in the act of running away, and unattended by the owner or other person, and on the sidewalk of the public highway breaking through the plaintiff’s show window. This evidence raised a prima facie presumption of negligence upon the part of the defendant. Dennery v. Great A. & P. Tea Co., 82 N. J. L. 517.

Also, we think there was no legal error in the refusal of the motion for judgment in favor of the defendant based upon the same ground. At the time this motion ivas denied the evidence tended to show that the defendant’s horse and wagon had been left by his servant untied and entirely unattended in the public highway; that' theretofore both the owner and his servant had knowledge of the propensitjr of the horse to run away when left untied and unattended, and it was therefore open to a jury, or to the trial judge sitting without a jury, to find the defendant liable for damage done to the plaintiff’s property by the horse when it ran away by reason of having been left untied and unattended. Belles v. Kellner, 67 N. J. L. 255.

The judgment below will be affirmed, with costs.