Dennery v. Great Atl. & Pac. Tea Co.

• Decision Date: 20 November 1911
• Citation: 81 A. 861,82 N.J.L. 517
• Parties: DENNERY v. GREAT ATLANTIC & PACIFIC TEA CO.
• Court: New Jersey Supreme Court

81 A. 861

82 N.J.L. 517

DENNERY

v. GREAT ATLANTIC & PACIFIC TEA CO.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1911.

(Syllabus by the Court.)

Error to Circuit Court, Hudson County.

Action by Robert Dennery by John Dennery, his next friend, against the Great Atlantic & Pacific Tea Company. Judgment for plaintiff, and defendant brings error. Affirmed.

The writ reviews a judgment on verdict in favor of the plaintiff, who was three years and two months old, for personal injuries received by him from being run over on the public highway or street in Jersey City by defendant's runaway horse attached to its delivery wagon. The errors assigned are to a refusal to nonsuit and to a refusal of a motion for the direction of a verdict in favor of the defendant. The plaintiff's case showed a driverless horse running away harnessed to a delivery wagon upon which defendant's name appeared, and coming around a corner (into the street where it ran over plaintiff) from the direction of a railroad crossing a short distance away, where trains were frequently drilling. Upon this evidence the court refused a motion for nonsuit. Defendant then called the driver (Wood), who testified that the team belonged to defendants, and that he as their employé was making deliveries for them with it when the accident happened; that this was the first day he had ever driven the horse in question (which was five years old); that he drove up to the railroad crossing where the gates were down and a freight train, consisting of small dirt cars on springs, was drilling at the time, and attaching the hitching weight to the horse's head left it with its head toward the gates while he made a delivery; that he then returned, removed the hitching weight, put it in the wagon, and went around back of the wagon to see that all was right, and had come up on the side next to where the reins were when the horse became frightened at the starting of the freight cars or the puffing of the engine, both of which the driver heard start up at that moment, and swerving sharply around started to run; that the driver grabbed at the reins, but missed them and fell down, and the horse ran around the corner, and up the street, where the plaintiff was injured.

Griggs & Harding, for plaintiff in error. Tumulty & Cutley, for defendant in error.

WHITE, J. (after stating the facts as above). By reason of their nature and training, horses can be safely utilized to draw vehicles upon public streets only when controlled by reasonably competent drivers. This fact is in such complete accord with universal experience that the legal duty to supply such a driver exists, and consequently it is prima facie evidence of negligence for a person to permit his horse attached to a wagon to go out upon a public street without any driver or other person in charge. If, therefore, a horse and wagon are found passing along a street with no one in charge, the absence of the driver gives rise to a prima facie presumption of negligence on the part of the owner. The fact that the horse is running does not negative this presumption. That a horse under such circumstances, finding itself without any one's guidance or control, should soon commence running, is the result both of its nature and of its training. Its nature is to frighten at unusual sights and sounds and to run away from them. It has been trained, however, to confide in and rely upon its driver's guidance and protection, instead of resorting to its natural instincts. When, therefore, it realizes the unaccustomed absence of this...