Dages v. Bryant , 103 N.Y.S. 1121 ( 1907 )

PER CURIAM.

Plaintiff sued to recover damages for the loss of a horse and for injuries to a runabout claimed to have been caused by defendants’ automobile. Plaintiff's driver was proceeding up Park avenue, and when near the northeast curb of 84tlr street and Park avenue there was a collision between the horse and wagon and the automobile. The automobile was coming through 84th street and going west. The horse's legs were broken and he was shot. The runabout was also injured. The driver of the horse was corroborated in the main by two disinterested witnesses. The defendants put in no testimony, Motion to dismiss the complaint was granted and judgment entered for the defendants. From this judgment the plaintiff appeals. The court below doubtless decided that, giving to the plaintiff the benefit of the most favorable inferences from plaintiff's evidence, his driver was guilty of contributory negligence. AA-'e cannot agree with this conclusion. On the contrary, we think plaintiff made out a prima facie ease for recovery and that the complaint should not have been dismissed. The judgment appealed from is reversed and a new trial granted, with costs to appellant to abide the event.