Williams v. O'Keefe — 22 N.Y. Super. Ct. 536

Majority

p. 536

George Williams, Plaintiff and Respondent, v. John O’Keefe et al., Defendants and Appellants.

Headnote

1. In an action brought to recover damages from the defendants for negligently running over the plaintiff in the street, it appeared that the plaintiff, whéi crossing at a street corner, was knocked down .by defendants’ vehicle; which was driven at a rapid rate around the corner., Hélct, that an ordinance of the corporation, forbidding driving faster than a walk in going around the corner of any street, was admissible in evidence, not as furnishing proof of negligence on the part of defendants, but as tending to relieve the plaintiff from the imputation of negligence on his part.

2. In such actions, negligence, whether on the part of the plaintiff or the defendant, is a question of fact for the Jury to determine.

3. Unless the proof of negligence on the part of the plaintiff is so strong that the Court would set aside a verdict in his favor as being clearly against the weight of evidence, it is not proper to take 'that question from the Jury, by granting a nonsuit at the trial.

(Before Bosworth, Ch. J., and Moncrief, Robertson, Barbour and Monell, J. J.)

Heard, May 31;

decided, October 18, 1862.

p. 537

Appeal from a judgment entered on a verdict recovered on a trial before Mr. Justice Mohorief and a Jury, on the 17th of March, 1862.

The action was brought by George Williams against John O’Keefe and John J. Duryea, proprietors of a stage line in this city, to recover damages for alleged negligence in running against and injuring the plaintiff, with one of their stages.

On the 23d Xov., 1859, in the evening, plaintiff was passing up the Bowery. When crossing Second street, one of the defendants’ stages, (whose route lay through the Bowery and Second street,) running up, and being driven at a rapid rate, turned into Second street. The pole struck the plaintiff, knocked him down, broke his arm and injured his neck. The plaintiff testified that the stage was going “furious, pretty hard—a hard trot—going fast.” The plaintiff offered in evidence an ordinance of the corporation, declaring it to be unlawful to drive any vehicle in the streets of the city, faster than six miles an hour, or faster than upon a walk in going around the corner of any street. This was objected to by the defendants. The objection was overruled and the defendants excepted. The defendants moved to dismiss the complaint, on the ground, substantially, that the accident was occasioned by the plaintiff’s negligence, or that his own negligence contributed to produce the injuries. The motion was denied, and the defendants excepted. Considerable testimony was given by the defendants, designed to contradict the plaintiff’s evidence. The Jury rendered a verdict in favor of the plaintiff for $1,500.

A motion for a new trial was denied at Special Term, and this appeal is as well from the order denying the motion as from the judgment.

Geo. R. Thompson, for defendants, appellants.

S. C. H. Bailey, for plaintiff, respondent.

There was no valid objection to proving the corporation ordinance, regulating the

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rate of speed of vehicles in the city. The objection to it was, that no infraction of it having been shown, it was immaterial. It does not appear for what purpose it was offered, and although it furnished no evidence of negligence in fact on the part of the defendants, (Brown v. Buffalo & State Line R. R. Co., 22 N. Y. R., 191,) yet it seems to me it was proper and competent evidence for another purpose; namely, as tending to prove, in connection with other testimony, that there was no negligence on the part of the plaintiff. The ordinance was one of the public laws of the city, and as such was presumed to have been known to all citizens. This knowledge was calculated to regulate in a greater or less degree, the care which any one traveling upon the streets would exercise. The presumption is, that the ordinance would be observed,—that in turning around a corner from one street into another, necessarily passing over the cross-walk, the pace of the horses would be slackened to a walk. Surely then, a foot passenger knowing that such an ordinance existed, and believing that it would be observed, would not be called upon to exercise that care and prudence which he would exercise if there was no restriction upon the rate of travel. So that if he had reason to believe the vehicle would hold up to a walk as it approached the sidewalk, he would and might properly and with safety act very differently than if he believed the vehicle would continue on across the cross-walk at a rapid rate. The evidence, in my judgment, was therefore proper as tending to relieve the plaintiff from the imputation of negligence on his part, and could well be considered by the Jury in connection with other evidence for that purpose.

As I understand the law, as now settled by the Oourt of last resort in this State, negligence is a question of fact for the Jury to determine, whether it be negligence on the part of either party. The plaintiff must be free from fault, but he need not show it affirmatively in the first instance. He must be able to satisfy the Jury, from all the facts and circumstances in the case, that he has not, by his own neglect, contributed in any degree to the

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injury. (Johnson v. The Hudson R. R. Co., 20 N. Y. R., 65.) Denio, J., in this case, says, (p. 69,) after stating the general rule, “ the plaintiff’s case, when presented to the Jury, must not be defective on that point any more than upon that of the defendants’ negligence.” He further says “it is not a rule of law of universal application that the plaintiff must prove affirmatively that his own conduct on the occasion of the injury was cautious and prudent. The onus prolxmdi in this, as in most other cases, depends upon the position of the affair as it stands upon the undisputed facts.” And, again, “the culpability of the defendant must be affirmatively proved before the case can go to the Jury, but the absence of any fault on the part of the plaintiff may be inferred from circumstances.”

Accordingly, it seems to be now well settled that unless the proof of negligence on the part of the plaintiff is so strong that the Court would set aside a verdict in his favor as being clearly against the weight of evidence, it is not proper to take that question from the Jury. Independently of this view, I cannot discover any evidence in the case, up to the time the plaintiff rested, which can properly impute any negligence to him.

The motion to dismiss the complaint was properly overruled.

The relation given by the defendants’ witnesses of the accident as seen by them, if I could believe that it referred to the same accident testified to by the plaintiff, would certainly excite the suspicion that the Jury had not dealt fairly between the parties. But without entering upon an analysis of the testimony, it is sufficient that I believe the defendants’ witnesses saw another and different accident, occurring possibly on the same evening, at about the same place and near the same hour. The plaintiff’s relation of the accident, and of its consequences, is corroborated by several witnesses, especially in that he did not leave his house for nine or ten days after he received the injury. The plaintiff’s and defendants’ witnesses stood confronting each other, and the Jury who tried the case

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were best able to determine whose was the correct version of the affair. It is enough for us that we cannot say their verdict is clearly against the weight of the evidence.

The case seems to have been fairly put to the Jury. The Judge charged as requested by the defendants’ counsel, that there could be no recovery by the plaintiff if the Jury believed that the accident was caused by his negligence, or that his negligence in any degree contributed to the accident. The Jury have found against the defendants upon all the questions, and we see no reason for disturbing their verdict. * ' . •

The judgment must be affirmed.