The opinion of the court was delivered by Freund, S.j.a.d. (temporarily assigned).
The defendant, Robert Sublett, appeals from a jury verdict in favor of the plaintiff, Bernard Pincus, in the sum of $7,000 for personal injuries and property damage.
The plaintiff was driving his automobile along Victory Boulevard in Staten Island in a wooded area, when he saw a riderless horse galloping out of a side road. He brought his car to a standstill, but the horse jumped on to the hood of the car, breaking the windshield and inflicting other damage to the car, as well as personal injuries to the plaintiff.
Joan Moran, an experienced rider, 16 years of age, had
been exercising the horse, Lady Dorothy, for its owner, the defendant, admittedly as his agent. The horse was a mature gentle animal, and Joan had previously ridden it a number of times. She was riding with a Mr. O'Brien, who was mounted on a horse owned by him. The testimony discloses that the horses had been trotting, but were being walked along a bridle path adjoining Victory Boulevard, when some boys in a car on the highway blew the horn and shouted "Hiya, Babe." Lady Dorothy shied, unseated Joan who had been riding with a loose seat and relaxed reins, and galloped away for a distance of about 3 1/2 miles to the spot where she collided with the plaintiff's automobile.
The appellant urges that the trial court should not have permitted expert testimony as to the rider's control over the horse at the time it shied; that the question of the rider's control was factual and accordingly for jury determination. Mr. Ferguson, whose qualification as an expert, was conceded by the defendant, testified in reply to a hypothetical question that in his opinion "according to the place in which this horse was being ridden, alongside of a thoroughfare, traveled by automobiles, that horse should have been ridden with all the collection that a horse should have to have complete control." Further, in reply to questions by the court, the expert testified as follows:
"The Court: Well, the question was, do you think the horse was being ridden properly. The answer is yes or no.
The Court: All right. Now, you can explain why. Go ahead.
The Witness: The manner in which the horse was ridden at the time is used a great deal amongst horsemen on places where there is nothing to distract the animal, but along a highway where you have cars or anything that is liable to excite an animal, the horse should have been collected and balanced and under complete control of the rider, not with a slack rein, and not with the hands down as it was explained. I know nothing of this except the testimony that was given to me.
The Court: That's right. Your testimony is based on the question.
The Witness: Just what was given to me there. Now, under those conditions that were presented, the horse was not ...