Opinion
April Term, 1901.
George D. Reed, for the appellants.
J.B.M. Stephens, for the respondents.
This action was commenced in the Municipal Court of the city of Rochester February 17, 1899, to recover damages to the horse, wagon and harness of the plaintiffs caused by the alleged negligence of Jonathan West, the original defendant.
The said West owned an automobile of somewhat crude and unusual construction and propelled by steam generated by a gasoline burner. In October, 1898, Mr. West and his wife were riding in their vehicle for pleasure and passed along Tracy park, one of the streets in the city of Rochester. This street is about fifteen feet in width from curb to curb. The plaintiffs were in the laundry business, and their employee, in delivering packages of laundry, stopped in front of his father's house in that street and left the horse unattended, but held by an iron weight of thirty pounds attached to the bridle by a strap. The horse became frightened at the approaching horseless carriage of Mr. West and ran away, and the horse, wagon and harness were injured and a recovery was had in the Municipal Court therefor, which was reversed by the County Court as being against the weight of evidence. There was some evidence justifying the conclusion reached by the Municipal Court.
The testimony of the plaintiffs tended to show that the carriage gave forth a loud puffing noise and could be heard for two blocks; that the odor was pronounced; that as the carriage ran along there was a humming sound from its engine; that steam or smoke issued from the exhaust, and that teams had been frightened by it; that at the time of this accident it was passing the plaintiffs' horse at the speed of ten or twelve miles an hour, and did not slacken until the horse became frightened.
The judgment of reversal in this case was rendered before the recent amendment to section 3063 of the Code of Civil Procedure became a law, which, perhaps, permits the appellate court to reverse a judgment of the Justice's Court as against the weight of evidence. The authorities were then quite uniform in holding that it was not permissible for the County Court to reverse a judgment of the justice as against the weight of evidence if there was any disputed question of fact. ( Ludlum v. Couch, 10 App. Div. 603; Hommel v. Meserole, 18 id. 106; Northridge v. Astarita, 47 id. 486; Tower v. Blessing, 55 id. 634; Clark v. Daniels, 29 id 600.) This rule is applicable to the Municipal Court of Rochester. (Code Civ. Proc. § 3226; Laws of 1876, chap. 196, § 5.)
That the use of the streets must become extended to meet the modern innovations of rapid locomotion is evident, and we do not mean to suggest that an automobile or any other of the present means of conveyance is an unlawful or improper user, but in this particular case that there was evidence to support the judgment of the Municipal Court.
The judgment of the County Court is reversed, with costs and disbursements, and that of the Municipal Court affirmed, with costs.
All concurred, except ADAMS, P.J., who dissented, upon the ground that there is no evidence in the case of any negligence upon the part of the defendant.
Judgment of the County Court reversed, with costs and disbursements, and that of the Municipal Court affirmed, with costs.