35 N.Y.S. 313 | N.Y. Sup. Ct. | 1895
This action is brought to recover the statutory damages for the negligence of the defendant, resulting in the death of plaintiff’s intestate. The deceased was at the time 21 years of age, and had been employed in the Ringler Brewery for nine months pre
The question of defendant’s negligence, we think, was one properly submitted to the jury, but the more difficult and serious question is' whether the facts would warrant the inference that the deceased was free from contributory negligence. The burden was upon the plaintiff of establishing, not only the negligence of the defendant, but that his intestate was free from any negligence which contributed to the accident. Was the burden thus placed upon the plaintiff, of showing the absence of contributory negligence, sustained? In disposing of this question, we shall assume that the deceased was not aware of the rule forbidding the use of the passage through the elevator shaft.