15 N.Y.S. 108 | New York Court of Common Pleas | 1891
Upon examination of the evidence the conclusion is irresistible that no case was made for the consideration of the jury. That a party alleging negligence must prove it, and prove it, not by a scintilla of evidence merely, but by evidence sufficient to authorize a reasonable inference of negligence, is a well-settled principle in the jurisprudence of this state; and that failure to furnish such evidence requires a dismissal of the complaint is an equally incontestable rule of law. Conlin v. Rodgers, 14 N. Y. Supp. 782, (herewith decided.) Now, what evidence of negligence on defendant’s part
Assuming, however, that the evidence was enough to warrant the jury in finding the fact of the defendant’s negligence, the plaintiff’s case was still incomplete for lack of proof of her own care and diligence. That she was bound to negative the fact of contributory negligence on her part, or else be nonsuited, is familiar law. Conlin v. Rodgers, supra. Her narrative of the occurrence is simply that when she got inside, about opposite the third seat from the door, “the car jerked so violently that she was thrown with full force on her face, and her mouth struck the ground.” But a disinterested witness testified that “this lady got her fall tin-ough her own carelessness. When she came in to take her seat, instead of sitting down, she kept on her feet, and was turning around until the car started, looking around like as she was looking for somebody, and not looking where she seated herself.” In rebuttal the plaintiff denied something of this witness’ testimony, but the part quoted she did not question or qualify. Upon the uncontradicted evidence, therefore, the reasonable inference is not that the plaintiff was in the exercise of due care, but rather that her own negligence contributed to her injury. Tolman v. Railroad Co., 98 N. Y. 198; Hale v. Smith, 78 N. Y.