De Grazia v. Rudden

Defendant’s motion at the close of plaintiff’s case for a dismissal of the complaint should have been granted. The plaintiff testified that he was knocked down by a team of horses attached to a coach, and that the number 2,251 was on the lamp of the coach. He then showed, by a clerk in the mayor’s license bureau, that under this number a license had been issued to the defendant for a special cab, which is a one-horse vehicle. There being no further evidence to connect the defendant with the coach in question, and no testimony as to who employed the driver, and all the evidence being to the effect that it was a team attached to a coach, and not a one-horse vehicle, that did *398the injury, a prima facie case against the defendant was not made out. Nor was the defect supplied afterwards, for the testimony given by and on behalf of the defendant is all to the effect that the number of the coach which knocked plaintiff down was No. 2,156; that the said coach and horses were at the time driven' by a servant of, and owned by, one Wheeler, who, although he was defendant’s superintendent, carried on an independent business with said coach and horses; and that for years said coach had been run under a license issued to Wheeler.

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