54 N.Y. 245, Belton v. Baxter
|Citation:||54 N.Y. 245|
|Party Name:||DANIEL BELTON, Respondent, v. EDWARD W. BAXTER et al., Appellants.|
|Case Date:||June 01, 1873|
|Court:||New York Court of Appeals|
Argued Mar. 20, 1873.
N.C. Moak for the appellants. The question of negligence was one of law. (Barker v. Savage, 45 N.Y. 191; Gonzales v. N.Y. & H. R. R. Co., 38 Id., 440; Steves v. O. & S. R. R. Co., 18 Id., 422; Ginnon v. N.Y. & H. R. R. Co., 3 Robt., 25; Dascomb v. Buf. & S. L. R. R. Co., 27 Barb., 222; Thwings v. Cent. Park R. R. Co., 7 Robt., 618.) Plaintiff's negligence contributed to the accident and he cannot recover. (Havens v. Erie R. Co., 41 N.Y. 296; Wilds v. H. R. R. R. Co., 29 Id., 314, 315; Barker v. Savage, 45 Id., 191, 195; Ernst v. H. R. R. R. Co., 39 Id., 61; Williams v. Richards, 3 Car. & K., 82; Woolf v. Beard, 8 Car. & P., 373; 34 E. C. L. R.; Hawkins v. Cooper, Id., 473, 474;
Luxford v. Large, 5 Id., 421; Cotton v. Wood, 8 C. B. [N. S.], 571; 98 E. C. L. R.) Where the judge's charge is so confused or indefinite that it may have misled the jury, a new trial will be granted. (Hanford v. Artcher, 4 Hill, 271; Hall v. Naylor, 18 N.Y. 591; Sayre v. Townsends, 15 Wend., 147; Alexander v. Blodgett, 44 Vt., 476.) Plaintiff was bound to use the care that a prudent man was bound to exercise under similar circumstances. (Curtis v. Detroit, etc., 27 N.Y. 167; Shear. & Redf. on Neg., § 11.)
Stephen A. Walker for the respondent. The motion to dismiss the complaint on the ground of contributory negligence, was properly denied. (Baxter v. Second Ave. R. R. Co., 3 Robt., 511; Aaron v. Second Ave. R. R. Co., 2 Daly, 127.)
There should be a new trial in this case, for the following reasons:
(1.) The plaintiff was guilty of negligence which certainly contributed to his injury, and this is apparent upon his own testimony. He wanted to cross Second avenue, on Fourth street where he resided. It was near evening, but still daylight, and he saw a Second avenue car coming just above Third street, and behind it a cart also coming. The car was moving pretty fast, and all this was plainly seen when he was between eleven or twelve yards from the curbstone in Second avenue. He hurried on a little, and made his "calculation" that he could cross in front of the car, "before the cart could get up." It is thus evident, that the plaintiff expected the cart to attempt to pass the car as it did, and his...
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