Woodward v. Loomis

Rumsey, J. : The action is brought to recover damages which the plaintiff suffered by the kick of a horse belonging to the defendants which he was engaged in driving for them. The serious question litigated was whether the horse was vicious and whether the defendants knew it. There was considerable testimony on each side. The defendants had a verdict. After the horse had kicked the plaintiff he was sold by the defendants to one Myers, who having been sworn as a witness, .testified that he had owned him for some months. He was then asked what kind of disposition the horse had, which was objected to as incompetent, irrelevant, immaterial and as calling for a description of the horse long after the accident. The evidence was received over the objection thus taken by the plaintiff, and the witness answered that he was a good dispositioned horse in his judgment, and that he never saw him kick at anything unless he was playing around. This evidence was clearly incompetent. (Buckley v. Leonard, 4 Den. 500; Kissam v. Jones. 56 Hun, 432.) [28] We are not able to say that the evidence did no harm because it was addressed to the precise question at issue and which was strongly contested upon the trial. For this error the judgment and order should be reversed, with costs to the appellant to abide the result of the action. All concurred, except Williams, J., who dissented in an opinion.