Kastner v. Weinstein, 90.

• Decision Date: 02 February 1931
• Docket Number: No. 90.,90.
• Citation: 153 A. 538
• Parties: KASTNER et al. v. WEINSTEIN.
• Court: New Jersey Supreme Court

153 A. 538

KASTNER et al.

v. WEINSTEIN.

No. 90.

Court of Errors and Appeals of New Jersey.

Feb. 2, 1931.

Syllabus by the Court.

In order to render a person, who is in control of a horse upon a public street, responsible for an injury done by it through the negligence of such person, it is not necessary that the animal should be vicious.

Syllabus by the Court.

While a person has a right to lead a horse along a public highway, he is bound to use such reasonable care as the circumstances require; and if by reason of any negligence on his part the horse does any injury, he is liable therefor without proof of scienter. Syllabus by the Court.

The defendant was leading a horse upon a public street. The horse had not been out of the barn nor exercised for a week, and, on the occasion in question, was skittish at intervals, but was secured only by a halter and rope and not by a bit and bridle. The evidence tended to show that, under these circumstances, the defendant let go o?the halter rope and placed it in the crook of his arm and then lit a match and cigarette while alongside of the horse's head; whereupon the horse shied and kicked and injured the infant plaintiff (10 years old) who was passing on his bicycle about five feet away. Held, that the motion to direct a verdict for the defendant was properly denied, the motion being based upon the grounds (1) that there was no evidence that the horse was vicious or that defendant had knowledge of any vicious propensities; (2) that there was no evidence of negligence of the defendant which was the proximate cause of the accident; and (3) that the plaintiff was guilty of contributory negligence.

Held, also, that it was proper for the judge in his charge to call attention to subdivision 1, § 6, of the Traffic Act (P. L. 1915, p. 290), which reads: "No person shall cease to hold the reins in his hands while riding, driving or conducting a horse" on a public highway; also expressly charging that a violation thereof, while not controlling as to the defendant's negligence, was a circumstance, if proved, to be considered upon the question whether or not he exercised reasonable care.

Appeal from Circuit Court, Essex County.

Action by Walter Kastner, an infant, by Evelyn Kastner, his next friend, and by Evelyn Kastner, individually, against Harry Weinstein. Judgment for plaintiffs, and defendant appeals.

Affirmed.

McDermott, Enright & Carpenter, of Jersey City (Carl S. Kuebler, of Hackensack, of counsel), for the defendant-appellant.

John W. McGeehan, Jr., of Newark, for plaintiffs-respondents.

TRENCHARD, J.

This appeal is taken by the defendant from the judgments entered upon verdicts in the Essex county circuit court in favor of the plaintiffs.

The suit was instituted by Walter Kastner, an infant ten years old, by Evelyn Kastner, his mother, as his next friend, and by Mrs. Kastner, individually, to recover from the defendant damages on account of the in juries sustained by the infant plaintiff as the result of his being kicked in the head by a horse being led along a public street by the defendant.

The complaint alleged, and the plaintiffs undertook to prove, actual negligence on the part of the defendant in and while leading the horse, as the direct cause of the injuries to the infant plaintiff.

On this appeal from the plaintiffs' judgments, defendant contends that the trial judge committed error in refusing to direct a verdict for defendant upon the ground, among others, that there was no evidence that the horse was vicious or that defendant had knowledge of any vicious propensities.

But this contention ignores the fact that this action is founded upon the alleged negligence of the defendant. In order to render a person who is in control of a horse upon a public street responsible for an...