Opinion
April 20, 1906.
George A. Logan, for the appellant.
Henry A. Powell, for the respondent.
Present — HIRSCHBERG, P.J., WOODWARD, JENKS, GAYNOR and RICH, JJ.
The plaintiff has recovered a judgment for damages which are chargeable to the negligence of the defendant. While a horse and wagon of the plaintiff was being driven in one of the public streets in the borough of Brooklyn on the morning of May 12, 1904, the horse became frightened by a steam roller then operated by the defendant in violation of the requirements of section 155 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1901, chap. 531). There was evidence tending to show that there was no one in front of the roller to warn persons of its approach as required by the statute. The plaintiff's horse was driven in view of the roller suddenly and unexpectedly, and as a steam whistle was sounded by the engineer in charge of the roller the plaintiff's horse bolted and ran away. The evidence in the case was sufficient to warrant the justice in concluding that the plaintiff's driver was free from blame, and the circumstances established negligence on the part of the defendant.
In Mullen v. Village of Glens Falls ( 11 App. Div. 275) a horse driven by the plaintiff approached a cross street and was frightened by a steam roller belonging to the defendant and approaching on a cross street. No warning was given of the presence of the steam roller as required by statute, and it was held that the facts were sufficient to justify a verdict in favor of the plaintiff.
In Halstead v. Village of Warsaw ( 43 App. Div. 39) a steam roller was allowed upon the street after work was suspended for the day. A horse passing the roller shied and ran away, and in an action to recover the resultant damages it was held that a nonsuit was error.
The case of Rector v. Syracuse Rapid Transit R. Co. ( 66 App. Div. 395), relied on by the counsel for the appellant, is not in point, as there the provisions of the statute requiring someone to be sent ahead of the steam roller at a distance of at least one-eighth of a mile, were complied with.
The court was not in error in admitting testimony as to the usable value of the horse during the period the owner was deprived of its use by reason of the injuries sustained. (See Allen v. Fox, 51 N.Y. 562, and Moore v. Metropolitan St. R. Co., 84 App. Div. 613, 617.)
The judgment should be affirmed.
Judgment of the Municipal Court unanimously affirmed, with costs.