ALLIS v. TURNER

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Supreme Court, Appellate Division, Fourth Department, New York.

Thomas ALLIS and Virginia Allis, Plaintiffs-Appellants, v. John TURNER, Defendant-Respondent.

Decided: March 31, 1999

Present:  PINE, J.P., WISNER, HURLBUTT, SCUDDER and CALLAHAN, JJ. Duncan W. Clark,Finkelstein, Levine, Gittelsohn & Partners, Newburgh, for plaintiffs-appellants. Edward Allen Mervine, Bond Schoeneck & King, L.L.P., Oswego, for defendant-respondent.

Plaintiffs commenced this action to recover damages for injuries sustained by Thomas Allis (plaintiff) while attempting to restrain defendant's horse, which had escaped from a fenced pasture and was unattended on the road.   Plaintiffs appeal from a judgment dismissing the complaint based upon a special verdict finding that defendant was not negligent.   Supreme Court's denial of plaintiffs' request for a res ipsa loquitur instruction was reversible error.  “[H]orses do not generally wander unattended on public streets in the absence of negligence” (Loeffler v. Rogers, 136 A.D.2d 824, 523 N.Y.S.2d 660;  see, Johnson v. Waugh, 244 A.D.2d 594, 596, 663 N.Y.S.2d 928, lv. denied 91 N.Y.2d 810, 671 N.Y.S.2d 714, 694 N.E.2d 883;  Osborne v. Schoenborn, 216 A.D.2d 810, 811, 628 N.Y.S.2d 886;  see also, Young v. Wyman, 159 A.D.2d 792, 793, 551 N.Y.S.2d 1009, affd. 76 N.Y.2d 1009, 565 N.Y.S.2d 752, 566 N.E.2d 1157).   Plaintiffs established that defendant was in exclusive control of the horse and the pasture and that plaintiff played no role in the horse's escape (see, Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494, 655 N.Y.S.2d 844, 678 N.E.2d 456).   The instruction would have permitted the jury, after rejecting evidence of specific negligence, to infer negligence from the presence of the unrestrained horse on the road (see, Abbott v. Page Airways,23 N.Y.2d 502, 513, 297 N.Y.S.2d 713, 245 N.E.2d 388).

Judgment reversed on the law without costs and new trial granted.

MEMORANDUM:

All concur. HURLBUTT, J., not participating.