Fasshender v. Western Transit Co. — 26 N.Y. St. Rep. 112

Majority

p. 112

Jacob Fasshender, Resp’t, v. The Western Transit Company, App’lt.

(City Court of New York, General Term,

Filed October 3, 1889.)

Headnote

1. Appeal.

Where the charge as given was not excepted to, and no request for a. further charge on the subject was made, the appellate court will not review it.

2. Negligence — Burden of proof — Cabriers.

When the carrier’s duty ended at Buffalo, evidence of the bad condition-of the goods at Chicago does not necessarily imply that the carrier was the cause of the injury, so as to throw on him the burden of proving the-contrary.

Appeal from judgment entered on verdict in favor of plaintiff..

Potter & Potter, for app’lt; Hyland & Zabriske, for resp’t.

We have examined the elaborate appeal book and briefs submitted, and are satisfied that the evidence sufficiently supports the verdict rendered by the jury. In the exercise of our discretion, we decline to review that portion of the charge of the trial judge that was not excepted to, wherein he said that the burden of proof was upon the defendant to show that the plaintiff, as carrier, was negligent. Standard Oil Co. v. Amazon Ins. Co., 79 N. Y., 506 . As a rule, a party charging negligence must prove it, and if the peculiar features of the case-brought it within one of the exceptions to the rule changing the. burden of proof, the defendant might, by calling the trial judge’s attention to it, have elicited a further charge satisfactorily covering the exception applicable.

No such request was made, nor was any exception taken to what the judge did say, and he probably assumed that both parties acquiesced in his view. that the general rule controlled. There was evidence that the injury about which the dispute arose-was discovered in Chicago, and the plaintiff’s duty determined at Buffalo, so that proving the bad condition of the goods at Chicago, did not necessarily imply that the plaintiff was the cause of the injury, so as to throw upon him the burden of proving the contrary. Upon the entire case, we are of opinion that substantial justice has been done, and that the judgment appealed from should be affirmed, with costs.

McAdam, Ch. J., Nehrbas and McGown, JJ., concur.