Armour & Co. v. Carlas

• Decision Date: 05 December 1905
• Docket Number: 34.
• Citation: 142 F. 721
• Parties: ARMOUR & CO. v. CARLAS.
• Court: U.S. Court of Appeals — Second Circuit

142 F. 721

ARMOUR & CO. v. CARLAS.

No. 34.

United States Court of Appeals, Second Circuit.

December 5, 1905

Philip B. Adams, for plaintiff in error.

William J. Fanning, for defendant in error.

Before TOWNSEND and COXE, Circuit Judges.

COXE Circuit Judge.

The accident which caused the plaintiff's injuries occurred on the afternoon of October 5, 1900, at the intersection of Park avenue and Sixty-Seventh street, New York. The plaintiff, who had been a private coachman in the city for 25 years was driving a carriage team attached to a victoria containing two occupants in a westerly direction on Sixty-seventh street.

The center of Park avenue is occupied by a series of small inclosures, surrounded by iron railings, and filled with shrubbery which to some extent obscures the view. One of these small parks is located directly north of the Sixty-Seventh street crossing. Between the park railing and the westerly curb there is a driveway 28 feet in width.

The plaintiff testified that when he passed the shrubbery he looked up and down Park avenue and the road was clear although he saw a wagon coming down about 80 feet north of the corner of Sixty-Seventh street and Park avenue. He was proceeding at the rate of about four miles an hour and seeing no danger he kept on. Before he got across Park avenue the south bound wagon came into collision with the victoria and he was knocked off the box and fell to the street, receiving injuries. This wagon was owned by the defendant and was a heavy butcher wagon drawn by one horse. The horse or the shafts struck the rear wheel of the victoria with force sufficient to break the opposite wheel.

There is a grade toward the south on Park avenue at this point of four and a half to five feet in a hundred. The width of the driveway of Sixty-Seventh street is 30 feet. The westerly course of Park avenue is paved with asphalt, except that near the curb there is a strip about nine feet wide paved with Belgian blocks.

The foregoing version of the accident is corroborated by the two occupants of the carriage.

At the close of the plaintiff's case, counsel for defendant moved 'to dismiss the complaint on the ground that the plaintiff has failed to prove facts sufficient to constitute a cause of action, and that the testimony of the plaintiff shows that he was guilty of contributory negligence. ' The motion was denied and the defendant excepted.

The question of contributory negligence thus presented is the principal one argued. In approaching its discussion it is wise to keep in mind two controlling principles of law.

First Contributory negligence is a defense in the United States courts. It is not incumbent upon the plaintiff to prove the exercise of due care and caution on his part, the burden being upon the defendant to prove the absence of such care, namely, concurring negligence. Hough v. Railroad Company, 100 U.S. 213, 25 L.Ed. 612; Inland & Seaboard Coasting Company v. Tolson, 139 U.S. 551, 11 Sup.Ct. 653, 35 L.Ed. 270; Railway Company v. Gladmon, 15 Wall. 401, 21 L.Ed. 114; Northern Pacific Railroad v. Amato, 144 U.S. 465, 12 Sup.Ct. 740, 36 L.Ed. 596; Grand Trunk R. Co. v. Ives, 144 U.S. 408, 12 Sup.Ct. 679, 36 L.Ed. 485.

Second. As a general rule this question is for the jury. It is only where the evidence is practicably undisputed and the inferences deducible therefrom point to the conclusion that the plaintiff was at fault, and to that conclusion alone, that the court is justified in determining the question as a matter of law. Railway Company v. Woodson, 134 U.S. 614, 10 Sup.Ct. 628, 33 L.Ed. 1032; Dunlap v. Railroad Company, 130 U.S. 649, 9 Sup.Ct. 647, 32 L.Ed. 1058; Gardner v. Michigan Central Railroad Company, 150 U.S. 349, 14 Sup.Ct. 140, 37 L.Ed. 1107 .

We are of the opinion that the trial court could not under these well known rules have directed a verdict for the defendant at the close of the plaintiff's case. The account of the accident, sustained by three witnesses, was that when the plaintiff crossed the 28 foot driveway of Park avenue the defendant's horse was 80 feet distant. If this be true it seems self-evident that the plaintiff could not have...