Gropp v. Great Atlantic & Pacific Tea Co.

McLaughlin, J.: The plaintiff, while lawfully using one of the public streets in the city of Mew York, was knocked down and injured by a horse owned by the defendant, and brought this action to recover the damages sustained thereby. He had a verdict of $5,500, and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals. The complaint, in the form in which it was at the time when the parties went to trial, charged that the plaintiff’s injuries were caused solely through the careless, reckless and negligent manner in which the horse was being driven at the time in question. These alie [374] gations were put in issue by the answer. ■ At the trial, after plaintiff rested, defendant produced as a witness the driver of the horse, who testified that at the time plaintiff vvas injured the horse was running away; that he had, a short time prior thereto, become frightened at some object in the street and gotten beyond his control ; that he did the best he could to hold him and prevent running into plaintiff, but was unable to do so ; that he had never run away with him before, but he had had. trouble with- him ; that he would shy at everything in the street and would not stand' under the elevated railroad, and would. try to get away. On cross-examination he testified that every time he drove him the horse would stand on his hind legs and try to get away; that he was afraid of trolley cars, would not stand under the elevated railroad ; would become frightened at pieces .of paper in the gutter, and- that he had once started to run away but vvas stopped by a police officer. After both parties had rested, defendant’s counsel moved to dismiss the complaint on the ground that .there was no evidence of negligence on the part of the defendant, and it affirmatively appeared that' the horse was at the time running away and had gotten beyond control of the driver without fault on his part. Plaintiff’s counsel thereupon, at the suggestion of the learned trial justice, moved to amend the complaint by inserting an allegation therein to the effect that the horse was “ unruly, unmanageable and vicious,” all of which the defendant knew, or ought, in the exercise of reasonable care, to have known. The amendment was objected to by defendant’s counsel, but the objection was overruled and an exception taken, and the amendment granted. This exception presents the principal question raised on the appeal, the contention being that the amendment substituted an entirely new cause of action. I am of the opinion that under the facts presented the court had the power to (Code Civ. Proc. § 723) and properly granted the motion to amend. (Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646; Lustig v. N. Y., L. E. & W. R. R. Co., 65 Hun, 547; Martin v. Home Bank, 160 N. Y. 190; 1 Ency. Pl. & Pr. 564; Barnum v. Williams, No. 1, 91 App. Div. 464.) The amendment did not, in my opinion, substitute a new cause of action. The same judgment was demanded and plaintiff’s claim thereto -was based upon the same injury caused to him at the same [375] time and place by the wrongful act of the defendant. The original complaint was simply amplified by setting forth additional facts why the plaintiff should recover. The complaint, before the amendment, sought a recovery on the ground of negligence, that is, the negligent manner in which the horse was driven, and after amendment it sought a recovery upon the same and an additional ground, which additional ground was the negligence in attempting to drive,.-' upon a public street, a vicious horse which was likely to run away and do injury to others. In determining whether or not a new cause o£ action is introduced, the test as laid down in Davis v. N. Y., L. E. & W. R. R. Co. (supra), is : “A fair test to determine as to whether a proposed amendment of a complaint is allowable under the provision of the Code of Civil Procedure (§ 723) in reference to such amendments, or whether it sets up a new cause of action, is, would a recovery on the original complaint be a bar to a recovery under the amended complaint.” If that test be here applied, it seems to me clear, as heretofore said, that a new cause of action was not introduced by the amendment. The defendant owed the plaintiff a duty, which was to use reasonable care in the management and control of the horse which injured him and if it did not do this then it was answerable in damages. The court, in referring to this rule in Vandenburgh v. Truax (4 Den. 464), said : “ It may be laid down as a general rule that when one does an illegal or mischievous act which is likely to prove injurious to others, and when he does a legal act in such a careless and improper manner that injury to third persons may probably ensue, he is answerable in some form of action, for all the consequences which may directly and naturally result from his conduct * * *. It is not necessary that he should intend to do the particular injury which follows; nor, indeed, any injury at all.” This rule was applied in Dickson v. McCoy (39 N. Y. 400), where plaintiff, while using one of the streets in the city of Troy, was injured by defendant’s horse, which was unattended upon the street. The complaint in that casé alleged that the horse was of a malicious and mischievous disposition and accustomed to attack and injure mankind, but the proof failed to sustain this allegation. The court, however, held that this was not material: that “ It is not necessary that a horse should be vicious to make the owner responsible for injury done by him through the [376] owner’s negligence. The vice of the animal is an essential fact only when, but for it, the conduct of the owner would be free from fault.” The owner of a domestic animal is bound to take notice not only of the general propensities of the class to which it belongs, but also of any particular propensities peculiar to the animal itself, and if such propensities are of a nature, to "cause injury, he must anticipate and guard against them. (Hammond v. Melton, 42 Ill. App. 186.) If the animal be given an opportunity to exercise such propensities, through the negligence of the owner, he will be liable to persons injured without fault on their part. (Mills v. Bunke, 59 App. Div. 39; Thomas Neg. 508.) A party who puts a dangerous animal upon the streets of a public city does so at his peril. (Mahoney v. Dwyer, 84 Hun, 348.) Here, the horse in question had manifested a disposition to ru^ away every .time he had' been driven upon the street, which fact was well known to the defendant’s servant to whom was intrusted its care and management. The servant’s knowledge on this subject was the knowledge of the master. (Clowdis v. Fresno Flume, etc., Co., 118 Cal. 315; Brice v. Bauer, 108 N. Y. 428.) Did the defendant, having this knowledge, act as an ordinarily prudent man would act in driving this horse upon the street at the time and place in question? The answer was for the jury (West v. Woodruff, 112 App. Div. 133; Conway v. Rheims, 107 id. 289), and the- same was properly left to them. . Hor was the defendant surprised by the amendment. Its own witness furnished the proof-as to the vicious propensity of the horse and its disposition, to run away every time it was driven upon the street, and besides, twenty days before the trial the plaintiff served upon the defendant a notice that upon the trial of the action he would move to amend the bill of particulars “ by alleging further the following, to wit, that the said horse'was up tame, unruly, unmanageable and vicious.” The allegation introduced by the ámendment was treated as denied by the answer. This ■ clearly appears from the issues submitted to the jury. I am of the opinion that the judgment and order appealed from are right and should be affirmed, with costs. Hiller and Dowling, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented. .•