23 N.Y.S. 875 | New York Court of Common Pleas | 1893
All persons are alike under reciprocal obligation to exercise ordinary care,—the one, to avoid doing injury; the other, to avoid being injured. Ordinary care is that degree of precaution which an ordinarily prudent person would exercise under like circumstances; and negligence, in a legal sense, arises from the omission to exercise it. The presumption is that every one will do his duty. So one person may rely upon another’s observance of ordinary care, and neither is required to anticipate the other’s neglect in that respect. Much less is a person required to use extraordinary vigilance to avoid receiving injury from another’s anticipated neglect of ordinary care to avoid causing it, or to be watchful of another’s anticipated wanton or reckless conduct. Observing the above fundamental rules, it is impossible, upon attentive consideration, to resist the conclusion that the uncontroverted facts in the case at bar demonstrate that the conduct of defendants’ driver was the sole causa sine qua non of plaintiff’s injury, Plaintiff was a paver employed, with others, in paving Broadway, between Twentieth and Twenty-First streets, on the westerly side of the railroad tracks running longitudinally through the center of the roadway. Between the rails, and to the east of the tracks, the roadway was in safe and suitable condition for the passage of vehicles, the space east of the tracks being sufficient for that purpose. In the afternoon of October 26, 1891, in “broad daylight,”