Baxter v. Auburn & S. Elec. R. Co.

• Decision Date: 07 January 1908
• Citation: 83 N.E. 469,190 N.Y. 439
• Parties: BAXTER v. AUBURN & S. ELECTRIC R. CO.
• Court: New York Court of Appeals Court of Appeals

190 N.Y. 439

83 N.E. 469

BAXTER

v.AUBURN & S. ELECTRIC R. CO.

Court of Appeals of New York.

Jan. 7, 1908.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Angeline Baxter, as administratrix, against the Auburn & Syracuse Electric Railroad Company. From a judgment of the Appellate Division (118 App. Div. 919,103 N. Y. Supp. 1116), affirming a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.

William Nottingham, for appellant.

R. C. S. Drummond, for respondent.

GRAY, J.

The plaintiff has recovered a judgment against the defendant for the damages sustained by her in the loss of her husband, whose death, as she alleged, was caused through the negligent management of one of the defendant's cars. The judgment was affirmed by a divided vote of the justices of the Appellate Division, and upon this appeal it is principally urged upon us by the defendant that the deceased appears from the evidence to have contributed to the accident by his own negligent conduct. It is necessary in these cases, when a defendant is sought to be charged with the consequences of the neglect of a duty to exercise care, that the person injured as the result of that neglect shall not appear to have contributed to the injury by his own negligence. It must affirmatively appear that his conduct did not so concur with the defendant's negligence, and enter into the incident, as to have become a proximate cause of the injury. He must have exercised that degree of care which was commensurate with the situation. That may be shown directly through the testimony of eyewitnesses, or it may appear from circumstances which permit the jurors fairly to infer the fact. When by reason of the death of the injured person his mouth is closed, the burden nevertheless remains upon the complainant, upon whom the cause of action has devolved, to show affirmatively by direct evidence, or from surrounding circumstances, that the deceased was without fault. When the evidence as to how he conducted himself is confined to inferences from circumstances, the courts, where the defendant's conduct has been flagrantly violative in one way or another of the duty owing, have been inclined to relax the application of the rule as to the quantum of proof, and greater latitude is allowed in permitting the inference of an exercise of ordinary care. If in such case the surrounding facts and circumstances reasonably indicate that the accident might have occurred without negligence in the deceased, that inference becomes possible, in addition to that which involves careless conduct, or a willful disregard of personal safety, and thus as a question of fact it would be for the jury to decide between the two possible inferences. But when the facts are undisputed, and, taken with the occurrence of the accident, they permit only the one inference to be drawn from them, that there was no occasion for the accident consistent with the exercise of proper prudence and care on the part of the injured person, the plaintiff has failed to make a case. The question is, then, one of law for the court to determine. See Tolman v. Syracuse, B. & N. Y. R. R. Co., 98 N. Y. 198, 50 Am. Rep. 649.

In this case there was direct testimony upon which the plaintiff relied to show how the accident occurred; but it failed to establish, or to suggest, that the deceased exercised that care or prudence in conduct which was necessary upon the occasion. In deed the testimony of the eyewitness, and the circumstances disclosed by the evidence preclude a reasonable inference that he was mindful of the situation. He was employed as a teamster by the municipality, and was engaged in dragging flagstones from a stone-yard, and in loading them upon a wagon, which stood in the street by the curbstone. For the purpose the...