Downey v. Inman & International Steamship Co. — 18 N.Y. St. Rep. 1017

Majority

p. 1017

Thomas Downey, Resp’t v. The Inman and International Steamship Company (Limited), App’lt.

(City Court of New York, General Term,

Filed November 23, 1888.)

Headnote

Negligence—Question oe eact—Should be submitted to jury.

The question of negligence is one of fact and not of law, and should be submitted to the jury, and this although the circumstances of the occurrence in connection with which the negligence is alleged are not in dispute since different inference as to negligence, may be drawn therefrom.

Louis J. Grant, for resp’t; Biddle & Ward, for app’lt.

Plaintiff sues defendant as a common carrier, alleging a loss of baggage through defendant’s negligence. Defendant denied the charge of negligence, pleaded and proved a special contract, under which, it was exempt from liability except for gross neglect, and tending also to limit the damage claimed, to the sum of fifty dollars.

No proof of defendant’s negligence was offered beyond the fact, that defendant’s vessel, upon which plaintiff took passage, was burned at sea.

The cotirt denied appellant’s motion to dismiss for want of proof of negligence and directed a verdict for plaintiff for fifty dollars and interest.

The controverted question of negligence, was a question of fact, and not of law, and therefore it ougívfc to have been submitted to the jury.

This is true, although the precise circumstances attending the loss, are not in dispute, since different inferences as to-negligence, might be drawn therefrom.

The jury might have found, from the facts established, that defendant was guilty of gross negligence, but they were not bound to do so. Cochran v. Dinsmore, 49 N. Y., 253 .

The judgment should be reversed and a new trial ordered, costs to abide event.