Brick v. Metropolitan Street Railway Co. — 35 Misc. 135

Majority

p. 135

Joseph Brick, Appellant, v. The Metropolitan Street Railway Co., Respondent.

(City Court of New York, General Term,

May, 1901.)

Headnote

Negligence — Erroneous charge as to contributory negligence.

In an action based upon negligence, it appeared that the plaintiff was injured because he jumped back from a carriage against the shaft of the defendant’s cart. The court instructed the jury that the plaintiff must show himself free from any contributory negligence such as might have brought about the accident and that he must also establish that the negligence was entirely that of fhe defendant.

Held, that the charge was erroneous in both branches and that the plaintiff was only bound to show himself free from any negli-, gence which contributed proximately to the accident.

p. 136

Appeal from a judgment entered upon a verdict in favor of the defendant and from an order denying the plaintiff’s motion for a new trial. The action was by the plaintiff, a street sweeper, to recover for personal injuries caused by being run over by a wagon, or cart, of the defendant.

Harrison, Seasongood & Edwards (Wm. H. Leonard Edwards and Clifford Seasongood, of counsel), for appellant.

Henry A. Robinson (John T. Little, of counsel), for respondent.

The court charged the jury as follows: “The plaintiff, in order to recover, must not only establish to your satisfaction from the evidence presented, that he has been entirely free from negligence and' from any. contributory negligence such as might have brought about the accident, but he must also as well establish to your satisfaction that the negligence was entirely the negligence of the defendant." To this portion of the charge plaintiff duly excepted. It was error for the court to charge that it was necessary for the plaintiff to prove his freedom from any contributory negligence such as might have brought about the accident. The correct rule of law is that the plaintiff’s negligence must have contributed to the accident, and that negligence must, be proximate and not remote.

It was further error in this case, in view of the defendant’s story of. how the accident happened, i. e.} that the plaintiff jumped back from a carriage against the shaft of the defendant’s cart, for the court to charge that the plaintiff was bound to show that the negligence was entirely the negligence of the defendant. It may be that the accident occurred by reason of the negligence of the driver in charge of the carriage passing by and the negligence-of the defendant’s servant. All that the plaintiff was called upon, to prove was that the accident occurred without negligence on his part contributing thereto, and because of the negligence on the part of the defendant.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present: Fitzsimons, Ch. J., Hascall and O’Dwyer, JJ.

Judgment and order reversed and new trial ordered, with costa to appellant to abide event.