Kehoe v. Riesenberg

DAYTON, J.

Action for injuries to plaintiff’s hbrse, caused by defendants’ negligence. Answer, general denial. Pleadings verified. Amount claimed, $250. Jury rendered a verdict for $75. Defendants appeal. No motion was made to dismiss at the close of the whole case. Plaintiff was driving his express wagon down Fifth avenue at about 3% miles per hour. Some automobile stages were coming up Fifth avenue. Near Eightieth street there was a tangle. Defendants’ wagon, moving at the rate of about six miles an hour, struck the hind wheel of plaintiff’s wagon and threw plaintiff’s horse to the ground, and one of the automobiles went over its left foreleg. The horse was shot. The court charged the usual rules of law applicable to the case at bar. Defendants made no requests, nor took any exceptions. The question of damages remains to be disposed of. Plaintiff was the only witness as to value. He bought the horse w.hen in a decrepit condition from “mange,” and treated it with carbolic sponge baths until it became restored. This treatment, including feed and labor, he said cost $150, and that the horse was reasonably worth $250. He was an interested witness, and his estimate of value must, therefore, be cautiously considered, even had he stated his .unqualified opinion of its value. Taking the most favorable- view to which plaintiff is entitled we are of opinion that the judgment must be reversed and a new trial ordered on the ground of excessive damages, unless the plaintiff ■ shall stipulate to reduce the damage to the sum of $35. Judgment reversed, and new trial ordered, with costs to appellants to abide the event, unless the plaintiff stipulates within five days to reduce the- judgment to the sum of $35 and appropriate costs in the court below, in which event the judgment, as modified, is affirmed, without costs to either party u-pan this ' appeal. ■