Turteltaub v. Trachtenberg

Defendant appeals from a judgment for plaintiff entered upon a verdict and from an order denying a motion for a new trial. The plaintiff claims to have been knocked down and injured by a horse owned by defendant and driven by his servant, the collision resulting as is alleged from the negligence of such servant. The plaintiff is quite an old man, and on February 13,1908, was crossing from the south to the north side of Houston street at the corner of Orchard street, in the city of Hew York. There was a good deal of snow in this street, but the crosswalk had been cleared or beaten down. Defendant’s servant was driving a baker’s wagon westwardly on Houston street. He was driving two horses, one in the shafts and one hitched oil the outside. The plaintiff, according to his own evidence, saw the horses and wagon coming and stopped to let them pass in front of him. He even stepped back a little to what he considered a place of safety, described as about two and a half feet from the *282wagon track. He says that the horse “ made a bound ” and struck him on the arm, knocking him down. Several witnesses called by defendant and who saw the accident agreed that plaintiff either ran into the horse or attempted to seize his bridle and missed it, and fell without having been touched by either horse or wagon. Leaving their testimony out of consideration, and accepting plaintiffs version, it is clear that his complaint might well have been dismissed. He points to no negligent act whatever on the part of the driver, who does not appear to have swerved toward plaintiff or to have driven at any unreasonable rate of speed or lost control of his horses, nor can it be seen how the “ bound ” of the horse, whatever that may mean, resulted from any negligent act on the part of the driver. Even if there can be found in the case a scintilla of evidence to take the case to the jury, still the verdict should have been set aside as against the evidence.

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

Ingraham, P. J., Laugh lin, Clarke and Miller, JJ., concurred.

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