69 N.Y. 166, Evans v. City of Utica

Citation:69 N.Y. 166
Party Name:DAVID J. EVANS, Respondent, v. THE CITY OF UTICA, Appellant.
Case Date:March 27, 1877
Court:New York Court of Appeals
 
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69 N.Y. 166

DAVID J. EVANS, Respondent,

v.

THE CITY OF UTICA, Appellant.

New York Court of Appeal

March 27, 1877

Argued, Mar. 19, 1877.

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COUNSEL

John D. Kernan, for the appellant. Plaintiff had no right to proceed carefully, even after he discovered the condition of the walk. ( Dubkin v. City of Troy, 61 Barb., 437; Horton v. Inhab. of Ipswich, 12 Cush., 488, 492; Wilson v. City of Charlestown, 8 Al., 137; Butterfield v. Forester, 11 East, 60.)

S. M. Lindsley, for the respondent. The jury was justified in finding plaintiff free from contributory negligence. Belton v. Baxter, 58 N.Y. 461; Hackford v. N.Y. C. & H. R. R. R. Co., 53 Id., 654; Thurber v. Harlem, etc., R. R. Co., 60 Id., 326; Todd v. City of Troy, 61 Id., 506; Weber v. N.Y. C., etc., R. R. Co., 58 Id., 451; S. & R. on Neg., 462; Lyman v. Inhab. of Amherst, 107 Mass., 339; Hill v. Seekonk, 119 Id., 85; Massoth v. Pres., etc., D. & H. Canal Co., 3 N.Y. W'ky Dig., 207.)

MILLER, J.

No error was committed by the judge in refusing the motion made by the defendant's counsel to nonsuit the plaintiff. The question whether the plaintiff was chargeable with contributory negligence, was a question of fact which was properly submitted to the consideration of the jury, and unless it is apparent that the finding of the jury was entirely unauthorized there is no valid reason for holding that there was any error in this respect. It is not the province of this court to review questions of fact, and if there was any evidence to warrant the conclusion that the plaintiff was not negligent, the judgment cannot be disturbed upon the ground that the plaintiff was guilty of negligence. The claim that the plaintiff paid no attention whatever while passing along the sidewalk, and that he was careless, is not warranted by the evidence. It is true that he did not in response to the question put to him upon the trial whether he paid attention when he passed over the ice, say directly whether he did or did not. He did answer however, that he stepped on the ice right along; but this response does not warrant the inference that he thereby admitted that he was not sufficiently careful in his movements,

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or that he failed to exercise a due degree of caution. That he did not notice or think of there being any danger of...

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