University of Vermont AAHS

Allis v. Turner


New York Supreme Court, Appellate Division
688 N.Y.S.2d 864
March 31, 1999


Summary of Opinion


Plaintiff Allis was injured trying to capture defendant’s horse on the public road.  The trial court ruled in favor of the defendant but the appellate court said that the doctrine of circumstantial evidence of negligence (called res ipsa loquitur or the thing speaks for itself) on the part of defendant in permitting his horse to be on the highway applied.  The jury should have been told about that law so the appellate court reversed and sent the case back for a new trial.

Text of Opinion

 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.

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