GUY, J.
Plaintiff appeals from judgment dismissing the complaint in accordance with a motion made by defendant's counsel at the close of the whole case, renewing a motion made at the close of the plaintiff's case, on which decision was reserved by the court with the acquiescence of both plaintiff and defendant's counsel.
The action is for damages for personal injuries. Plaintiff was struck by a truck owned by the defendant while standing on the running board of his auto, which was stationary and drawn up against the curb on the right side of the street. Defendant concedes that the doctrine of res ipsa loquitur applies, and that, in the absence of explanation as to the manner of the happening of the accident, plaintiff would be entitled to recover. Defendant's driver testified that immediately prior to the accident he was driving at a moderate speed, having control of his horses; that he had driven the same team for a number of years, but that something like an apple core, which was thrown or fell from the elevated structure under which he was driving, frightened his horses, so that for some 20 or 25 feet they were uncontrollable, and hat the accident happened before he had regained control of the horses; that he did not see the plaintiff, and did not know that he had been injured. The evidence of this witness was in some respects inconsistent. He was corroborated as to may of the facts by another witness, a helper, who was riding with him; and one of plaintiff's witnesses testified that the way in which the truck was approaching attracted his attention, and that it was zigzagging as it came on. It was for the jury to determine whether defendant's evidence was sufficient to overcome the presumption of negligence arising from the happening of the accident.
There can be no question that the trial court had the right to reserve decision on the motion to dismiss where both counsel acquiesced in the court so doing (Eail v. N. Y., N. H. H. R. R. Co., 201 N. Y. 355, at page 357, 94 N. E. S63); but the court erred in holding as matter of law that there was no evidence that would justify the jury in finding the defendant guilty of negligence. The evidence fully established plaintiff's freedom from contributory negligence.
The judgment must be reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All concur.