20 N.Y. 65, Johnson v. Hudson River R. Co.

Citation:20 N.Y. 65
Case Date:September 01, 1859
Court:New York Court of Appeals

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20 N.Y. 65

CATHARINE M. JOHNSON, Executrix, & c.,



New York Court of Appeal

September 1, 1859

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William Fullerton, for the appellant.

Henry Morrison, for the respondent.


It is insisted on behalf of the defendants, that the judge erred in refusing to hold as matter of law, upon the facts proved, that the deceased was guilty of negligence; that if any question upon that branch of the case could be left to the jury, still he erred in charging that the negligence which would preclude a recovery must be such as directly contributed to the injury; and finally that he erred in his statement of the

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measure of care and prudence required from the deceased and the defendants respectively.

First. The general rule has been so often laid down and reiterated, that to enable a party to recover in this class of actions, the person injured must not by his own negligence have contributed to the injury, that it must be considered a legal postulate. I agree that this is an element in the definition of the cause of action, and that the plaintiff's case, when presented to the jury, must not be defective upon that point, any more than upon that of the defendants' negligence. This is embraced in the proposition that the injury must be the result of the negligence of the defendants; for if the culpable conduct of both parties united in bringing it about, that proposition is not true. But I am of opinion that it is not a rule of law of universal application that the plaintiff must prove affirmatively that his own conduct on the occasion of the injury was cautious and prudent. The onus probandi in this, as in most other cases, depends upon the position of the affair as it stands upon the undisputed facts. Thus, if a carriage be driven furiously upon a crowded thoroughfare, and a person is run over, he would not be obliged to prove that he was cautious and attentive, and he might recover though there were no witnesses of his actual conduct. The natural instinct of self-preservation would stand in the place of positive evidence, and the dangerous tendency of the defendant's conduct would create so strong a probability that the injury happened through his fault that no other evidence would be required. But if one make an excavation or lay an obstruction in the highway, which may or may not be the occasion of an accident to a traveler, it would be reasonable to require a party seeking damages for an injury to give general evidence that he was traveling with ordinary moderation and care. The obligation to give such evidence would be greater or less according as the impediment was more or less dangerous. Thus, in Butterfield v. Forrester (11 East, 60), the defendant, in making some repairs to his house in a town, had put up a pole across the road, leaving however a free passage by a branch or street in the same

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direction. The plaintiff rode against it and was injured. No question arose as to the onus; but it being proved that he was riding immoderately, it was held that he could not recover. So in Smith v. Smith (2 Pick., 621), the defendant had piled cordwood by the side of the highway at the foot of a hill, and one stick projected eight inches into the road. The plaintiff in a dark night drove an overloaded wagon down the hill without any shaft-girth to the harness. The wagon struck the horse and he ran alongside of the wood pile and against the projecting stick and caused an injury. A verdict for the defendant was sustained by the court on the ground that the plaintiff's conduct had contributed to the accident. There was no controversy here as to the onus, all the facts being before the jury. If there had been no evidence of the circumstances, but only that the plaintiff had driven in the daytime against the stick of wood, and had been injured, although leaving...

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