Judgment and order reversed and new trial granted, with costs to appellant to abide event. Held, the proof that the colt was in the highway unattended *969and that it caused the accident made out a prima facie case and cast upon the defendant the duty of offering evidence that the colt was there without his negligence. It was error for the court to charge that the presence of the colt in the highway unattended was not evidence of negligence. It was also error not to charge, as requested by counsel for the plaintiff, that the presence of the colt in the highway unattended was of itself evidence of negligence. (Doherty v. Sweetser, 82 Hun, 556; Moynahan v. Wheeler, 117 N. Y. 285.) All concur.