West v. Woodruff (112 A.D. 133, 1906)

Kellogg, J.:

“ In. disposing of this case it is to be borne in mind that this is a directed verdict and the appellant is not only entitled to the most favorable inferences deducible from the evidence, but all the disputed facts are to be treated as established in her (his) favor.” (Koehler v. New York Steam Co., 183 N. Y. 1.)

It is not claimed that the plaintiff suffered his injury by reason of defendant’s driving a vicious horse, as was claimed in Benoit v. Troy & Lansingburgh R. R. Co. (154 N. Y. 223), but the-defendant is himself accused of personal negligence. The in jury is alleged to have arisen not from the vice of the horse, but the negligence of the driver. The defendant himself, and not the horse, is, therefore, on trial.

The complaint alleges, in substance, among other things, that defendant, knowing his horse was nervous, high-spirited and unaccustomed to the cars, .negligently drove it upon an embankment within a few feet of