Knupfle v. Knickerbocker Ice Co. , 30 N.Y. Sup. Ct. 159 ( 1880 )

Barnard, P. J.:

' The evidence of negligence upon the part-of defendant’s dri ver 'is sufficient to sustain the verdict. A team of mules attached to a 'heavy ice wagon, was left untied and unattended in the street of the city of Brooklyn. The driver was engaged in the delivery of ice for defendant, but had for the moment entered a house to see About a bird for himself. This deviation did not release the company from the act of leaving the mules untied and unattended. :They were so left while the driver was engaged in his proper business. No contributory negligence was as matter of law Attributable to the deceased child. It was a question for the jury, under proper instructions.from the court. The evidence tended to show that while the mules were standing in the street, the deceased, a' hoy of four or five years of age, was in a small wagon being drawn by a boy of about his own age, on the sidewalk. The wagon -with deceased ran under the wagon of defendant, between the - mules and the forward wheels of the ice wagon. The mules started and run over the boy in the small wagon and killed him. The jury were told by the judge that the children had “ no'right to play in the middle of the street, or -thrust themselves under the feet ’ of horsés. Therefore, if this accident was caused in your judgment by this child being thrust against the heels of the mules, then, although he was not guilty of any negligence, it will relieve the defendants from the imputation of having caused the accident by their negligence.” This was quite as favorable to the defendants as they were legally entitled to have charged.

It is very certain that, if a person had been present, or if the mules had been tied no accident would have happened. The mules did not run away. The children had the right to be in the street. They have not the capacity to protect themselves like persons of mature judgment, and the defendant was bound to furnish proper care and prudence for their protection.

There is no force in the exception to the admission of the city ordinance, requiring all teams to be securely tied or to have a person in charge. Such evidence is always admissible on the question of negligence.

The court charged the jury that “ the ordinance adds very little to what would' have been the rule without it; namely, that it is-negligence to leave a horse untied or not in charge of some one, in the public street. Whether there is an ordinance or not, the question, as I have said, is, whether these mules were left in such a way.”

Judgment should be affirmed, with costs.

Dykman, J., concurred; Gilbert, J., not sitting.

Judgment and order denying new trial affirmed, with costs.