*1 IN THE OF M8 COURT ARPEAIS. Company, Button v. The Hudson River Railroad Button, Administratrix, v. The Hudson Margaret River upon plaintiff an action for prove the burden is the affirm- atively guiltless any negligence that he proximately contributing to the injury. Such presumed, is not to be and therefore direct evidence to dis- prove required instance; it plaintiff is not from the in the first but where conflictingtestimony there is fact, preponderance as to the the must be with plaintiff him enable to recover. Where any existed, atwas very time the incurred, error, it misleading jury, exempt defendant, that in order to must have contributed to the injury. Appeal from the Court New York Superior city. Action the administratrix and widow of Thomas But- ton for husband, death of her damages who was run and killed over horse cars of the defendant passing West-street, down of New at 11 .York, o’clock city 13, trial, 1853. November before' night Upon Button, Mr. Justice the intes- proved Slosson, tate, had at or more been one dram drinking shops during accident; about five minutes evening previous them, after he left one of which was in West-street road, near the track of the defendant’s the cars passed he was killed. His was found across body straight lying track, the head one rail and the across the legs upon other. driver of the car which ran Button over at testified that he was the rate of four miles an driving hour; that he seethe horses and could could leading track; seen a man if that at the standing place upon where accident took horses leading place suddenly from the arid sideways seeing something jumped brakes, the track the driver but he before could applied arrest the car it had over deceased. There was passed December, Albany, isss. *2 Company. Hudson The River
Button v. at a was driven that car to show some evidence tending an hour. miles than four higher speed if there was that negligence The charged judge directly contributed the deceased on the of part then, although about the to catastrophe, bring any degree of been also negligence, defendant might guilty defendant is liable The for the defendant. verdict must be its about own in case the was brought only catastrophe and without any negligence part culpable negligence, to it. The defendant of the deceased contributing directly of to the use of the word “directly” excepted deceased, also that if the The charge. judge charged intoxication, laid there while in a of down state strolling cars, before the or tumbled unable to himself down support intoxication, to from then it was which the negligence disaster must attributed and the defendant must go quit, if the driver did not see him or see in time to avoid him. The defendant that if the requested judge charge deceased was urider the influence of intoxicating liquor, while in that condition and when there got upon car, of of or if he incapable hearing approach cause, from out of the way incapable, getting the car deceased was with then the ordinary facility, guilty and the cannot recover. The judge stated, and the than before de- refused to otherwise charge defendant further fendant took an requested exception. in order to recover, that the plaintiff, judge charge that the deceased was not must establish affirmatively guilty refused so to the de- judge charge negligence. are Other took an portions fendant exception. J. opinion stated Harris, following and, in answer to for the questions a verdict found them, found 1. That the death of specially: submitted caused defendant’s Button servants; 2. That there was the'part to the accident. The Button which contributed IY. 32 Smith.—Yol. IN THE OF APPEALS. COURT
Button v. The Hudson River Railroad was, entered on the verdict affirmed at appeal, term and the defendant to this court. general appealed O’Conor, Charles for the appellant.
Jonas B. for the Bliillips, respondent. are J. made for the points appellants: Strong, Two First, trial, erred in justice, instructing substance, intestate, jury, prevent *3 a must have the recovery, contributed to directly inj ury; and, second, that the erred to justice refusing action, it to the in order to maintain the belonged establish to that the intestate was not affirmatively guilty of negligence.
In first to the if there was regard any point, negligence of the intestate which contributed to the injury, consisted it of the or entering remaining imprudently road, of the track defendants’ himself to be exposing car, crushed killed a as passing actually happened. evidence, the there is else in the case in Upon nothing respect intestate, to which to the negligence by tending injury, can be And that such was the imputed. assuming negli direct; its influence towards the result was gence, wholly it them. nothing any affecting between way intervening followed, It was a cause of the proximate consequence therefore, whether, aas to all general proposition applicable cases of actions for from injuries negligence, negligence of the to a must injured, have party preclude recovery, not, contributed to the be sound or injury, seem to free from to the case. objection applied present use or omission of the word “directly,” stating case, to doctrine in this if possessed ordinary which must could not make intelligence, supposed, ; difference the intestate, practical negligence any, could not cause of the result otherwise operated than directly. DECEMBER, 1858.
ALBANY, River Hudson Button v. whom the question, upon
The other presents point in- to in reference negligence the burden proof, to the it belonged to the injury—whether testate conducing absence, the defend- or to affirmatively prove plaintiff of such negligence. affirmatively presence, ants prove cause essential to the all the circumstances regard and was sustain held required action plaintiff were, de- that the circumstances those affirmative. Among resulted from and that were fendants negligent, intestate was If the negligent, that negligence. defendants in that of the concurred with pro- action. The had no cause of ducing injury, is, that would exist both reason of action why right defendants intestate and the guilty what flowed from common authors immediately it, of either. and it was not consequence to, and will not undertake dis- court cannot accurately, them as to the extent of the criminate between neither, each; result each and share produced by therefore, could allege against any wrong, *4 view, be there can no In this legal without wrong injury. of due care the intestate was the exercise an element of by it, of cause “action. Without it would not the proof ap that the defendants caused the injury. pear on this lead to the same The cases conclusion. In point East, which was an v. Forrester action for (11 60), Butterfield street, from an obstruction Lord an injury Ellen- borough said: “Two must concur to things support — road, an obstruction in action the the fault the de by fendant, it, and want of care to avoid on the ordinary Cow., In Harlow v. Humiston plaintiff.” (6 189) case, Savage, J., a similar Oh. said: “Negligence by defendant, and care are by ordinary plaintiff, necessary sustain the action.” The same doctrine is stated in Wend., v. Rathbun see also v. (19 Payne 399); Bush Bram Cow., Wend., v. (1 ard Brown 78); Roper 615), Harfield IN 252 THE OF COURT APPEALS. v.
Button Hudson River Railroad Hill, v. Maxwell (6 and v. The Utica Railroa Spencer 592), d Barb., In Holbrook v. Company (5 The Utica 337). wife Kern., Railroad Schenectady Company(2 plain 236), wife, tiffs sued for an to the while a injury passenger cars, defendants’ arose, and the whether the question plain tiffs must defendants, in addition prove negligence the fact of the and it was held that the onus injury; and that negligence, was caused injury complained Massachusetts, In by negligence, plaintiffs. it has been cases that in an action several adjudged from must not prove negligence, only v. but care on his own ordinary part. (Smith Smith, Pick., 621; id., 2 Crombie, 177; Lane 12 v. v. Adams Carlisle, Metc., id., 146; Adams, 21 v. 12 Parker 415.) Maine and New rule v. the same Jersey (Kennard prevails. Burton, Maine, 25 49; Railroad Com Moore v. Central Zabriskie, 4 decisions are to the pany, English 284.) effect; Nurdin, S., 35; same v. 1 Ad. El. N. (Lynch & Dethick, 439, id., 447; v. 12 Clayards Bryan, Gough Wells., 773; 2 Mees. v. The Grand Rail Junction Bridge & id.,.247, 248; road 3 Martin v. The Great Northern Company, R., Law and 473.) Company, Eng. Eq. It must not understood that it incumbent instance, in the first for the direct give observance of due establishing object special intestate; care in- enough proof troduced of the defendants the cir- cumstances of established that the facie, injury, prima defendants; occasioned einjury of a evidence would idea want of due such exclude to the result. intestate Ordinarily, aiding *5 actions, on the there no fault similar when has been part the fault it will showing sufficiently appear defendant, that it a cause of of the was injury; so, when it does no further neces- subject in what in some but sary. The fact must way, appear ALBANY, DECEMBER, 1858.
Button The Hudson River The evidence of it mode is may unimportant. particular or circumstantial. Whatever direct only positive evidence, if there conflict to the nature fact, a must be there support preponderance proof it, must the-action fail. or like it is often
In cases practical great impor- present, the burden instructed that .to ta-nce properly jury - of the to the care to required proof, respect it do must more entitle him recover. holding party must a case on that The scales than make balanced point. in his In the it is turn favor. case quite ultimately present in the instruction on that was clear that error subject one, there trial. a material for which should be new should be reversed and a my opinion, with costs to abide the event. new trial granted, J. The verdict clearly againsj; Harris, evidence, even as the to them who law given judge deceased, at the seen after he esided trial. The when first pi saloon, left across the Lyming’s oyster lying directly head one and his with his rail feet on other. there, there, no came or how he had been How he long was, All that was was able state. witness proved saloon, and left he had been oyster drinking he was in this minutes before found there few position. but facts, told, of this'state of In view very pro- deceased, while in a state there strolling perly, cars, intoxication, or had laid himself down before down, himself from intoxi- unable had tumbled support then, was his to which cation, unquestionably, attributed; and, did if the driver not to be disaster was him, not defendants were liable. to avoid him in time see If it was his This unobjectionable. the track -he position-in fault that was lying own discovered, seen was not and he first he was him, I then the decease it reached car before time stop *6 254 IN THE COURT OF APPEALS.-
Button v. The Hudson River Railroad death, was cause himself the of his own and defendants were blameless. warranted no testimony finding.
But then the to the minds before judge proceeded open field of stated that the de- jury conjecture. /He found, eased had to be he where was and-the right ques- was, tion for the whether he was" there through jury any own, he fault of his or whether was over and passing cars; was was down that if he knocked by passing across and was run over prudently properly cars, the defendants omitted the use of such used, as, precautions prevented disaster, was entitled to a verdict. This part was erroneous. The charge testimony presented was such deceased found on the track. question. lying defendants’ It was not the fault that he there. was All was, was to that the called do to court instruct the upon rule of as to the law to the case as it was jury applicable to But of the testimony. presented by part charge, erroneous, seems to have there been no though exception. told In another that the charge part liable case defendants were only catastrophe their about own with- brought culpable negligence, “ out on the the deceased any negligence part directly to To the use of contributing produce catastrophe.” “ there the word The diffi- directly,” exception. is, with this leaves culty part and indefinite. What were the question vague understand negligence directly contributing produce The same form of catastrophe? expression pervades the entire fact deceased charge. found track was uncontroverted. There was no lying that-it was fault to show defendants assumed, It should that he there." have been nothing that it was fault. own contrary, Why, appearing “ then, whether there was ask the jury say any negli- of the deceased which gence contributed ALBANY, DECEMBER, 1858. *7 Company. The Hudson Hirer
Button v. Railroad to the accident ?” There was no in such the case. question The deceased was found on the track. This fact was lying as much the and immediate cause"of his death proximate as the fact that the defendants’ cars over body. passed The death was the combined result of both causes. that, case, should have been instructed the jury whether, the for them decide only question exercise of reasonable after the deceased prudence, discovered, have his life. driver saved might
A case is found quite Dowell analogous principle Bain., The Steam In Ellis & Navigation Company 195). case, that there had been a two collision between vessels. awas plaintiff’s vessel the defendant’s vessel sailing a steamer. The collision had taken mouth place Thames, at vessel exhibited night. plaintiff’s a but had light, withdrawn it two or three minutes before the collision. The vessel was not those seen plaintiff’s board the steamer until within two or three lengths It it. was then to avoid collision. The impossible found, hand, on the one that vessel was at fault sailing not and, until the continuing light danger past; other, that the steamer was at too going great speed so dark a said for also much They night. inclined think the of blame was with the steamer. preponderance consideration, held, full It that very finding facts amounted to a of these verdict the defendant. Lord court, said delivering Campbell, must be taken found that have the fault of the vessel, led in not a to the collision. He adds: showing light, collision, “If this was a cause of the however proximate fault, be in much steamer the action cannot be might case, fault maintained.” vessel plaintiff’s in an all consisted condition without lying exposed night reasonable adopting exhibiting precaution light. case, In this the fault of the deceased consisted in his placing himself across the railroad position CASES IN THE OF APPEALS. COHET Button v. The Hudson River If the show the omission to danger. light greatest possible accident, taken to led to the in the one must be case much must the how more deceased perilous position case. was laid down rule in such case I think the true cited, last in his instructions tried the case who judge, that, “if there was He told them jury. the de- as on the of the" as well part fendant, collision, re- could not which led to the *8 the accident if the defendant not have avoided cover could there skill; and reasonable care and even supposing by vessel, had been negligence plaintiff’s skill, still, could, steamer if the by ordinary collision, an- have been the defendant the- avoided side of a man was on the The fact that wrong swerable.” defence in an constitute a does not the road necessarily over; if run but whom he was another action by against accident, it cause of the immediate there was his being defence, whom the even injury is a person by though cannot, fault. man himself at One by was committed another cast the. necessity his own negligence, upon in the fact Lord noticing care. extraordinary Campbell, Steam Com- v. The Dowell Navigation found by jury, “ was with the of blame the. preponderance pany, steamer,” there was blame on “The think said: occasioned, and sides, the accident was both verdict, immaterial, so, whether is with regard steamer or the blame with the the preponderance vessel.” of mutual exceedingly negligence whole subject Central The Vermont Trow v. well considered Verm., In that case plaintiff 487). Company The de his horse turned highway. unlawfully railroad track to allowed their had unlawfully fendants horse, the track uninclosed. being upon remain defendants’ killed road, run over defendants’ ALBANY, DECEMBER, 1858.
Button v. The Hudson River Railroad There was engine. any negligence manner at the time of the acci conducting engine dent. It was held to be a case of mutual that no action would lie. the questio considering sustained, an whether can be action when and the defendant has plaintiff mutually cooperated producing are stated. I injury, following principles think are well established When the by authority. (1.) of each is the cause of the party proximate injury, no action can be sustained. term is used “proximate” “ from It remote.” refers to distinguished at the time of the No matter on which occurring injury. lies, side the blame both are at fault at preponderance the time of the neither can sustain an action. Haw injury, P., kins v. Carr. 473) illustration Cooper (8 apt & this rule. In that case the had been run over street, cart, the defendant’s horse and injured. “ trial, J., Ch. said to the You will Upon Tindal, jury: determine for whether the yourselves attributable *9 to the carelessness and mode of improper driving of the defendant’s If servant. think it was attributable you that, alone, and to that find will verdict for the you your occasioned, But if think it was plaintiff. you amydegree, conduct of the by herself in improper plaintiff crossing manner, and a so incautious in such case improper defendant will be entitled to verdict.” A similar case your was tried before Mr. Justice about the same Coleridge, female, time. A as she' was off the just curb stepping street, stone to cross a in the was struck evening, and knocked down driven, a cabriolet which was being said, at a most judge for the time and improper pace were told if place. took plaintiff proper care, and reasonable and it account of the extra speed of ordinary cabriolet that she could not save her self, accident, thus met with the she was entitled to their she, verdict. But her own and want of negligence Smith.—Yol. IY. 33 OF APPEALS. IN THE COURT
258 Railroad The Hudson River Button v. recover, accident,
care, not even to the she could contributed should, the cabriolet think the driver of though fast, was, therefore, too driving negligence. guilty Beard, P., 373; 8 Carr. see also Pluckwellv. (Woolf & Carr, Wilson, P., Holland, 375; 5 6 Williams v. Carr. & & P., 23; Brand v. The Com Railroad Troy Schenectady Barb., 368, cited; 8 v. The and.cases there pany, Sheffield Barb., Rochester Railroad Syracuse 342.) Company, Where the of the (2.) plaintiff proximate f remote, and that of the defendant can be sustained. action { case, In such himself is the immediate cause plaintiff accident. This rule embraces all that class of case s where, time charge plaintiff injury, hand, care. the other where
able with want of On proper and that of the defendant of the proximate remote, the action be sustained. may ques plaintiff is, whether, then conceded that tion plaintiff fault, the defendant the exer was not without might, by care and at the time of of reasonable cise prudence Cleveland, it. avoided Kerwhacker v. The injury, Ohio, 172, N. Columbusand Cincinnati Company in illustration of this rule. The referred to may S.) ' run at let large hogs carelessly found defendants’ uninclosed road. of the Being vicinity run and killed over the hogs that, held It was notwithstanding defendants’ servants. were bound to use the defendants carelessness found Being guilty reasonable avoiding injury. in the destruction action hogs, gross VermontCen Trow v. The sustained. On contrary, *10 sustained, because was not the action tral Railroad Company, at the in want of avoiding was no there case Mees. also the donkey See time happened. W., 548). & instead us, now jury, the case before liable substance, defendants instructed, in ALBANY, DECEMBER, 1858.
Button The HudsonRiver Railroad unless of the deceased contributed to “negligence directly should have if the been told that produce catastrophe,” deceased, accident, time it, concurred to could not any way produce The verdict of the recover. shows that must they have misled been before charge. Upon them, could not said that the deceased was not have they recklessness, with to utter chargeable negligence, amounting himself he which was first placing position senses, If in discovered. he must be presumed been, he have courted his own destruction. Under these circumstances, he must be regarded having cooperated with the defendants his death. Unless the produce that, be could made to after the believe deceased was dis- covered, defendants, care, reasonable could have result, the fatal avoided were not liable. That they could done this has not been The testi- pretended. warrant such conclusion. scarcely mony therefore, am of I should be opinion, awarded, and that a trial reversed new be should with costs to abide the event.
All the concurred the result of these judges opinions, and, most in the stated in of them. part, grounds both J., J., after hearing the Strong, opinion Harris, agreed ” “ that the word to have been withdrawn ought from the he doubted whether in this charge, though case it defendant; did to the and in this John- any practical injury J., J., concurred. The latter Oh. Selden, son, objec- ted which he conceived to lurk in the implication J., J. (but Strong, Strong, opinion disclaimed), that, absence circumstances proof importing there might pre- he is thereof which whereas his required sumption repel; evidence, must be inferred from and is not to J., For reason he and Roosevelt, put presumed. *11 OF APPEALS. COURT IN THE
Bartle v. Gilman. Harris, J. stated grounds their mainly in- erred Denio, J., refusing judge opinion respect requested influence under the track while in going upon J., Comstock, opinion expressed intoxicating liquor. new trial ordered reversed and Judgment Gilman, al. &c. et Bartle 8-, 617, R. 24) giving fioubli eosts § provision of the Revised Statutes establishing cases, not a statute or other public officers, and in certain &c., attorneys, repealed and is not Code. regulating fees Appeal term of from order Supreme general district, at an order Court, affirming special sixth costa, double the defendant ground term granting him a for acts done that the action public brought submitted officer. The case points. printed II. R. Mygatt, appellants. Glover,for the
James W. respondent.. is, this case Strong, J. whether only question of the Revised the allowance of Statutes for provisions costs, in like cases are double repealed by present, Code. costs, statutes, are con- those provisions concerning 3, 2,
tained 612. That vol. chapter chap. p. 10* “ officers,” costs, and has three entitled and the fees Of costs titles. The first title relates to “the cases which recovered, al- and in which double costs may may cases, lowed;” costs, double among gives